Are you the director or shareholder of a company?
Did you know you cannot represent your company in Court? You must instruct a solicitor to act for the company.
Let me explain.
I have often seen company directors and/or sole shareholders in the District Court seeking to represent the company. The company is a separate legal entity, however, from the shareholders, directors and members and it may face prosecution or be engaged in legal proceedings and disputes from time to time-for example failure to file tax returns or health and safety prosecutions.
If the company was a natural person it could do so as the director or any individual can represent himself in Court. Whether that is a good idea or not, however, is another kettle of fish.
Many times, the director of the company will go to the Court himself and purport to speak on behalf of the company. This is not permissible, however, as a company director or shareholder or member does not have a right of audience in Court in Ireland.
This rule was first established in a case in 1969, the “Battle” (Battle v Irish Art Promotion Centre Limited) case. This decision was reaffirmed by the Supreme Court decision delivered in October 2018 between AIB Bank and Aqua Fresh Fish Limited.
The Supreme Court stated,
The so-called rule in Battle v. Irish Art Promotion Centre Limited  I.R. 252, when complemented by the inherent jurisdiction and discretion of the Court to permit, in exceptional circumstances, representation of a company by a person who is not a lawyer with a right of audience, continues to be the law in this jurisdiction and is consistent with the Constitution.
Put simply the general rule is that a company must be represented by a solicitor; Courts have the power, in exceptional circumstances, to allow a person who is not a lawyer to represent a company in court. But the general rule is that only 3 categories of person have a right of audience in Court:
- The parties in a case
- A solicitor instructed by a party in the case
- A barrister instructed by a solicitor for one of the parties in the case.
The exceptional circumstances which may give rise to a Court permitting a company director to act for the company in Court are not clear and there are no guidelines you can follow or anticipate. Regard will be had by the Court to precisely what type of representation the non lawyer individual- director or otherwise-intends providing-for example, whether he/she intends acting in a ‘lawyer’ capacity before and at trial or merely acting on one occasion in Court or in a lesser capacity. Presumably the Court will also consider the complexity of the issues involved in the case and whether the administration of justice will be significantly hampered or delayed.
In addition to the exceptional circumstances referred to above there is a statutory exception pursuant to the Companies Act, 2014-that is, where a company is charged with an indictable offence it may appoint a representative to appear on its behalf in Court.
Moreover, a Court may listen to the views of a director in the interests of justice and to assist the Court; this is a different matter, however, to representing the company as a ‘lawyer’.
A company director or member or shareholder cannot represent their company in Court, the company must ‘lawyer up’, save for exceptional circumstances.