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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Tougher -v- Tougher's Oil Distributors Ltd & anor (No 1) [2014] IEHC 254 (15 May 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H254.html Cite as: [2014] IEHC 254 |
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Judgment Title: Tougher -v- Tougher's Oil Distributors Limited & anor (No 1) Neutral Citation: [2014] IEHC 254 High Court Record Number: 2013 12226 P Date of Delivery: 15/05/2014 Court: High Court Composition of Court: Judgment by: Cregan J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 254 THE HIGH COURT [2013 No. 12226 P] BETWEEN THOMAS TOUGHER PLAINTIFF AND
TOUGHER’S OIL DISTRIBUTORS LIMITED AND JOHN O’REGAN (NO.1) DEFENDANTS JUDGMENT of Mr. Justice Cregan delivered on the 15th day of May, 2014 Introduction 2. For the limited purpose of considering the application for a right of audience, I gave liberty to Mr. O’Donoghue to address the court on this issue. Mr. Tougher also made brief submissions on this point. 3. In response to a specific question from the court Mr. O’Donoghue confirmed that he was seeking an unrestricted right of audience before the court to represent Mr. Tougher in this matter. 4. Mr. O’Donoghue in his submission argued that Mr. Tougher had a right to a fair hearing; that Mr.Tougher had a right to appoint Mr. O’Donoghue to act on his behalf; and that Mr. O’Donoghue, on Mr. Tougher’s behalf, had an untrammelled right of audience before the court. Mr. O’Donoghue also referred to a “Directive from Europe” (which he did not particularise any further, but which he indicated had not yet been ratified) which he sought to rely on. He also sought to rely on unparticularised provisions of the European Convention of Human Rights and also what he termed developing principles of natural justice and a right to a fair hearing. 5. The defendants submitted that they had no objection to Mr. O’Donoghue appearing as a McKenzie friend for Mr. Tougher, but they did object to him seeking a right of audience before the court. Applicable Legal Principles 7. At para. 16 of his judgment Fennelly J. states as follows:-
17. The notion of a McKenzie friend originates in the decision of the Court of Appeal in England in McKenzie v. McKenzie [1970] 1 P. 33. Davies L.J. recalled the following statement of Lord Tenterden C.J. in Collier v. Hicks [1831] 2 B & AD 663: ‘Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may 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.’ 18. That brief statement continues to represent an accurate description of the role of a McKenzie friend and is generally accepted by our courts. It was considered in the High Court by Macken J. in R.D. v McGuiness [1999] 2 IR 411, which were family-law proceedings. She concluded, at page 421, 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”. …It will be noted, of course, that this is a description of the role of the McKenzie friend. This is not to say that a judge may not, on occasion, as a matter of pure practicality and convenience, invite the McKenzie friend to explain some point of fact or law, where the party is unable to do so or do so clearly. That must always be a matter solely for the discretion of the judge. The McKenzie friend has no right to address the court unless invited to do so by the presiding judge. 19. Here the court is asked to permit something utterly different. 21. Mr. Podger is neither counsel nor a solicitor, nor does he wish to act in the capacity of a McKenzie friend. He seeks an unrestricted right of audience before the courts. As I understand it, he wishes to be permitted to present the appeal on behalf of all of the appellants to the same extent as if he were a professionally qualified counsel or solicitor. He rejects the suggestion that he could act as a McKenzie friend. He is unwilling to accept the limited nature of that role. He considers it unduly restrictive that he should be limited to assisting the appellants without enjoying a right of audience. He seeks an unlimited right to appear and to argue the appeals but without any of the limitations which would apply either to a McKenzie friend or to a properly qualified legal practitioner. He submits that, in the absence of any provision of EU law prohibiting such a lay advocate as himself, that he is entitled to an unrestricted right of audience before the courts and that to deny him such a right of audience is to infringe the rights of the appellants to access justice in general, and specifically to access justice under the Aarhus Convention. 22. I am satisfied that the application of the appellants to be allowed to be represented by Mr. Podger and by him that he should be allowed to represent them must be rejected. 23. The fundamental rule is that the only persons who enjoy a right of audience before our courts are the parties themselves, when not legally represented, a solicitor duly and properly instructed by a party and counsel duly instructed by a solicitor to appear for a party…” 25. Thus, the right of audience is regulated by law. It is true that a party to proceedings (other than a corporation) has the right to appear for him or herself and to plead his or her own case. This is a matter of necessity as well as right. Regrettably it is a fact of life especially during the current economic difficulties in our country that many people are unable to afford the often high cost of professional representation and that the availability of legal aid is limited. There are other cases where litigants disagree with their lawyers or are unwilling to accept representation. Whatever the reason, there is an inevitable number of cases before the courts where litigants are unrepresented. In those cases, they have the right to represent themselves. It has to be accepted that this is sometimes unavoidable, which is not to say that it is desirable. There is no doubt that courts are better able to administer justice fairly and efficiently when parties are represented.”
30. 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. 31. I wish to make it clear that there is no reason at all to suspect the integrity of Mr. Podger, his commitment to the cases he wishes to bring on behalf of the appellants or his knowledge of this particular area of environmental law. However, the fact remains that he is not qualified in law and does not have any right of audience. 37. In conclusion, the general rule is clear. Only a qualified barrister or solicitor has the right, if duly instructed, to represent a litigant before the courts. The courts have, on rare occasions, permitted exceptions to the strict application of that rule, where it would work particular injustice. The present case comes nowhere near justifying considering the making of an exception. Mr. Podger seeks nothing less than the general right to appear on behalf of a group of thirteen litigants and to plead their cases to precisely the same extent as if he were a solicitor or counsel, which he accepts that he is not, but without being subject to any of the limitations which would apply to professional persons.” 9. Moreover, although the courts have on rare occasions permitted exceptions to the strict application of that rule where it would work particular injustice, I am of the view that, just as in the Coffey case, the present case comes nowhere near justifying the making of such an exception. I am clearly bound by the Supreme Court decision in Coffey which, in my view, applies in this case. 10. Furthermore, Mr. O’Donoghue has sought to make very general and unparticularised submissions based on the European Convention on Human Rights and general principles of natural and constitutional justice and a vague reference to some unnamed and apparently unimplemented EU Directive. However, this matter was also addressed by the Supreme Court in the Coffey decision as follows:-
“Other parties must be represented by a lawyer. Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.” … It is clear, therefore, that there is no warrant for the claim that, in the application of EU law or the European Convention on Human Rights, specifically either by the Court of Justice or the European Court of Human Rights, there is any obligation on the court of a Member State to permit a litigant to be represented by a person other than a duly qualified lawyer.” |
