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Is legal representation required?

AUTHOR(S): GearĂ³id Carey
PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution
DATE: 09.09.2014

Introduction

While it is well established that companies must instruct legal representatives for the purpose of representing the company in proceedings,(1) an individual may represent themselves (essentially on a litigant in person/lay litigant basis) if they do not formally instruct a legal representative. A recent case(2) has addressed the extent to which a party who has not instructed a practising lawyer may be assisted by another person in the presentation of his or her case. Although the decision is not novel, it is a useful restatement of some general principles regarding legal representation in proceedings before the Irish courts.

Background

The plaintiff applied to the High Court for permission for another individual (Mr O'Donoghue, a former solicitor) to have full rights of representation to represent him in an application by the first named defendant to strike out the proceedings and to vacate a lis pendens registered over property owned by the first named defendant. For the limited purpose of considering the application for a right of audience, Judge Cregan gave liberty to O'Donoghue to address the court on the issue. The plaintiff also made representations.

In response to a specific question from the court, it was confirmed that an unrestricted right of audience was sought. In this regard, it was submitted that the plaintiff had a right to a fair hearing, a right to appoint O'Donoghue to act on his behalf, and in that capacity O'Donoghue had an untrammelled right of audience before the court. Reference was also made to principles of European and human rights law in support of the contentions made. The defendants did not object to O'Donoghue acting as a McKenzie friend(3) but did object to him having full rights of audience before the court.

Legal principles

Judge Cregan noted that a Supreme Court decision had set out the appropriate legal principles to be applied and quoted at length from the decision of Judge Fennelly therein. With regard to lay litigants, he acknowledged:

"Such litigants have become an increasingly common feature of litigation in our courts. The reasons are many and various… The courts have recognised the capacity of a McKenzie friend to assist a lay litigant usually by giving advice organising papers. That procedure, however, must of necessity be carefully supervised. Only in the most limited circumstances would the court permit a McKenzie friend to address it."(4)

In Coffey the Supreme Court acknowledged that the McKenzie friend was permitted by Judge Macken in RD v McGuinness on the basis that:

"a party who prosecutes proceedings in person is entitled to be accompanied in court by a friend who may take notes on his behalf and quietly make suggestions and assist him generally during the hearing, but… may not act as advocate."(5)

Judge Cregan also quoted the Supreme Court in Coffey to the effect that:

"the right of audience is regulated by law… It would be inimical to the integrity of the justice system to open to unqualified persons the same rights of audience and representation as are conferred by the law on duly qualified barristers and solicitors. Every member of each of these professions undergoes an extended and rigorous period of legal and professional training and sits demanding examinations in the law and legal practice and procedure, including ethical standards. Barristers and solicitors are respectively subject in their practice to, and bound by, extensive and detailed codes of professional conduct. Each profession has established a complete and active system of professional discipline. Members of the professions are liable to potentially severe penalties if they transgress.

There would be little point in subjecting the professions to such rules and requirements if, at the same time, completely unqualified persons had complete parallel rights of audience in the courts. That would defeat the purpose of such controls and would tend to undermine the administration of justice and the elaborate system of controls."


Decision

The court noted that there was no reason to doubt O'Donoghue's integrity, but he was not a solicitor currently in practice and was therefore not subject to or bound by the extensive and detailed codes of professional conduct of the Law Society. Taking into account the principles reviewed, the court felt the case did not justify the making of an exception. With regard to the invocation of principles of European law, human rights law and constitutional and natural justice, the court observed that this had already been addressed as part of Coffey and that in any event it was bound by Coffey. Accordingly, O'Donoghue's application to have an unrestricted right of audience to represent the plaintiff was rejected.

Comment

Although the decision is not novel, it does represent a useful restatement of the principle that an individual is obliged to represent himself or herself as a lay litigant if he or she does not formally instruct legal representation. The scope for assistance from a third party is limited to the extent to which McKenzie friends are permitted. It therefore remains the position that if an individual does not wish formally to instruct legal representation, he or she is obliged to represent himself or herself. The position for a company remains that it may act in proceedings only where it can formally instruct legal representation.

For further information please contact Gearoid Carey at Matheson by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (gearoid.carey@matheson.com). The Matheson website can be accessed at www.matheson.com.

Endnotes

(1) Battle v Irish Art Promotion Centre Limited [1968] IR 252 (on the basis that as an artificial entity it cannot represent itself).

(2) Tougher v Tougher's Oil Distributors Limited [2014] IEHC 254.

(3) The notion of a McKenzie friend derives from McKenzie v McKenzie [1970] 1 P 33 where it was stated that:

"Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, make quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices."

(4) Re: Applications for Orders in Relation to Costs in Intended Proceedings: Coffey [2013] IESC 11.

(5) [1999] 2 IR 411, 421.
 

This article first appeared in the International Law Office Litigation newsletter 9 September 2014

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