Court of Appeal: Son of defendant to possession proceedings may not represent his father in appeal

About this case:

• Citation:
  [2022] IECA 287
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Senan Allen

The son had appeared 28 times in procedural lists on behalf of the defendant and had been allowed to make submissions at the substantive hearing of the plaintiff’s motion for leave to issue execution.

Delivering judgment in the case, Mr Justice Senan Allen outlined that a non-lawyer would only be allowed to make representations on behalf of a litigant in exceptional circumstances. The son was always aware that he had no right of audience before any court and, on the evidence, the circumstances of the case were not exceptional or even unusual.

Background

The plaintiff, Pepper Finance Corporation (Ireland) DAC, had obtained an order for possession against the defendant in October 2010. The plaintiff later applied for a renewal of the order of possession, which was granted in February 2013. A further renewal application was made in February 2014 but this was refused following the decision in Carlisle Mortgages Ltd. v. Canty [2013] IEHC 552. The defendant did not attend any of these motions.

In November 2017, the plaintiff issued a motion for liberty to issue execution on foot of the order for possession made in October 2010. As part of the application, it was explained that the plaintiff and defendant had engaged in 2014 and 2015 with a view to resolving the outstanding payments on the property. One of the proposals included that the son, Mr Maloney, would purchase the property.

Mr Maloney, who was not a qualified lawyer, attended the motion in November 2017 and it was adjourned to allow him to have the debt refinanced. Later, Mr Maloney appeared again to outline that he believed there was a transfer of his father’s loan and the plaintiff was no longer entitled to issue execution on foot of the order for possession. Mr Maloney was given liberty to file affidavits setting out the defence to the motion.

As a result of this, Mr Maloney appeared before the High Court on 28 separate occasions over the next four years. He was heard by several different judges. In January 2020, a judge identified a potential problem with a previous order for a renewal of the execution order. This led to the plaintiff bringing a motion under the slip rule to correct the order.

In the slip rule motion, Mr Maloney was held to have no right of audience but he was allowed to make representations on a de bene esse basis.

Following the successful slip rule application, the motion for leave to issue execution was heard in October 2021. At the outset of proceedings, Mr Maloney applied to the trial judge to be heard which was opposed by the plaintiff. It was said that he had represented his father on numerous occasions and produced a letter from the defendant’s GP. The letter outlined that the father had suffered from depression for a number of years since the breakup of his marriage in 2004. It was said that he was not mentally or physically capable of attending court.

In the circumstances, the trial judge exercised her discretion to allow Mr Maloney to represent his father, noting that the plaintiff had previously been directed to send a copy of papers to Mr Maloney. The plaintiff’s motion was refused and it appealed the decision.

As part of the appeal, Mr Maloney was directed by the Court of Appeal listing judge to bring a motion seeking to represent his father. The plaintiff opposed the motion.

Court of Appeal

Mr Justice Allen began by outlining the applicable legal principles. It was recognised by both parties that Mr Maloney had no right of audience, but the trial judge had not heard submissions on how to exercise her discretion.

The court noted that it was a fundamental rule that a right of audience was limited to the parties themselves or by solicitor and counsel properly instructed (Stella Coffey v. The Environmental Protection Agency [2014] 2 I.R. 125). The court also referred to Coffey v. Tara Mines Ltd. [2007] IEHC 249, where it was outlined that a non-lawyer could represent a litigant in “rare and exceptional circumstances”. The Tara Mines case involved a wife representing her speech-impaired husband who had discharged his solicitors and had failed to find a replacement.

The court also referred to the decision in Stella Coffey, where it would compromise the integrity of the professional legal system for unqualified people to have the same right of audience as qualified barristers and solicitors. Further, in Allied Irish Banks plc v. Aqua Fresh Fish Ltd. [2018] IESC 49, it was held that “exceptional circumstances” did not extend to impecuniosity or the existence of a good arguable defence.

Applying the case law to the present case, the court held that the defendant’s circumstances were not exceptional or even unusual. The inferred wish that the defendant wanted his son to represent him was not an exceptional circumstance.

The court noted that the defendant had not engaged with the legal proceedings at all but had engaged with the plaintiff in 2014 and 2015. The reason for Mr Maloney’s involvement was that he might be able to fund a solution rather than the inability of the defendant to engage with Pepper Finance, the court said.

The court also considered the letter from the defendant’s GP. The letter did not provide a justification that the defendant was not physically or mentally capable of attending court. The letter referenced very old matters from 2004 and 2007 and recorded an improvement in the last five years. There was simply no indication that the defendant was not in a position to deal with his problems.

No further medical report was produced despite a direction from the Court of Appeal listing judge. As such, the court determined that the defendant was a man of full legal and physical capacity.

The court said that it was understandable why Mr Maloney became confident that he would be heard since he had regularly appeared in procedural High Court lists. The court held that it was easy to see why the interests of justice required Mr Maloney to be heard “for the limited purpose of the business which needed to be immediately dealt with”. However, Mr Maloney was always aware that he had no right of audience.

The court held that it was not appropriate for the motion papers to be sent directly to Mr Maloney in the case and he should have been required to bring a motion to represent his father in the High Court proceedings.

Conclusion

There were no exceptional circumstances which required Mr Maloney to appear on behalf of his father. The application was dismissed.

Pepper Finance Corporation (Ireland) DAC v. Oliver Moloney [2022] IECA 287