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.
It is often claimed that the level of awards in personal injuries claims in Ireland is laughable and out of step with the rest of the developed world. A ‘compo culture’ is a phrase that is regularly thrown around but is there any truth in this?
A new report form the Personal Injuries Assessment Board (PIAB) which gives the data for the first six months of 2018 certainly supports this view. It tells us that the level of award in Ireland is 4.4 times that of awards for similar injuries in England and Wales.
For the first 6 months of 2018 the average award in Ireland for a whiplash type injury for the driver of a car in a car accident was €20,800 which breaks down to a figure of €19,066 for the injury itself-that is, general damages-and €1,734 for special damages-that is, out of pocket expenses.
Interestingly female victims were awarded a little more than males.
A whiplash type injury is one that involves soft tissue injuries to the neck, upper back, shoulders, and strains/sprains of the spine.
The figure for non-whiplash injuries for the first 6 months was €27,386; this would include more serious injuries than whiplash-for example, fractures, sprains, and so forth.
The report from PIAB also shows that 70% of claims in car accident claims for the same period were whiplash related.
It is hard to understand why Irish victims of these types of injuries enjoy one of the highest rates of compensation in Europe and 4.4 times that of England and Wales.
A former President of the High Court, however, has warned that the system in Ireland is open to abuse because the chances of a fraudulent claimant being prosecuted for making a false or exaggerated claim was “virtually zero”.
Meanwhile, we are all financing this system with higher insurance premiums virtually every year we renew our motor insurance policy.
Choosing which Court to pursue your legal proceedings in is an important decision with a potentially costly outcome if you pursue your cause of action in the wrong Court. Two recent cases illustrate this:
Moin -v- Sicika and
O’Malley -v- McEvoy
Two personal injuries cases were brought in the High Court but the awards were within the Circuit Court scale. The plaintiff was awarded costs on the Circuit Court scale but the Judge refused the defendant’s request for a differential costs order.
The defendant appealed this decision to the Court of Appeal and succeeded in getting a differential costs order.
This order allows the Judge who makes the award of damages to the plaintiff on the lower court scale to order that the plaintiff pay the difference between the costs actually incurred by the defendant and those that would have been incurred if the case was brought in the correct court.
The Judge can measure these costs or order that they be taxed and the differential costs provision also provides for a set-off against the plaintiff’s costs.
“Limitation on amount of plaintiff’s costs in certain proceedings.
17.—(1) Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (other than an action specified in subsections (2) and (3) of this section) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court.
(2) In any action commenced and determined in the High Court, being an action where the amount of damages recovered by the plaintiff exceeds £25,000 but does not exceed £30,000, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the Circuit Court, unless the judge hearing the action grants a special certificate, for reasons stated in the order, that, in the opinion of such judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or any question of law contained therein, that the proceedings should have been commenced and determined in the High Court.
(3) In any action commenced and determined in the High Court, being an action where the amount of the damages recovered by the plaintiff exceeds £5,000 but does not exceed £15,000, the plaintiff shall not be entitled to recover more costs than whichever of the following amounts is the lesser, that is to say, the amount of such damages or the amount of costs which he would have been entitled to recover if the action had been commenced and determined in the Circuit Court.
(4) It shall not be lawful for rules of court to contain or impose any restriction on the amount of costs recoverable by any party from any other party in any action or other proceeding, but nothing in this subsection shall prevent the insertion in rules of court of a restriction on the amount of the costs recoverable which is identical with a restriction imposed by this section nor the fixing by rules of court of the amount recoverable by any person as and for the costs and expenses incurred by him in the doing of any specified thing in any particular form of action or other proceeding.
(5) (a) Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (not being an appeal) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the judge concerned may, if in all the circumstances he thinks it appropriate to do so, make an order for the payment to the defendant or respondent in the proceedings by the plaintiff or applicant of an amount not exceeding whichever of the following the judge considers appropriate:
(i) the amount, measured by the judge, of the additional costs as between party and party incurred in the proceedings by the defendant or respondent by reason of the fact that the proceedings were not commenced and determined in the said lowest court, or
(ii) an amount equal to the difference between—
(I) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar, and
(II) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar on a scale that he considers would have been appropriate if the proceedings had been heard and determined in the said lowest court.
(b) A person who has been awarded costs under paragraph (a) of this subsection may, without prejudice to his right to recover the costs from the person against whom they were awarded, set off the whole or part thereof against any costs in the proceedings concerned awarded to the latter person against the first-mentioned person.
(6) In this section ‘relief’ includes damages.”.
The Court of Appeal held that it was incumbent upon a Judge where an award is made on the lower court scale to make a differential costs order unless there is a good reason for not doing so.
The Court of Appeal also noted it is necessary for the Plaintiff to pursue his case in the lowest court that can award what is reasonable in the circumstances of the case and if he does not do so then there is a serious costs risk.
In these cases the defendant had written to the Plaintiffs telling them that they believed the correct Court for the case was the Circuit Court and they would seek a differential costs order under under s. 17(5) of the Act of 1981 if the Plaintiff succeeded with his claim.
Are you thinking about buying a residential property? Or a commercial property?
If you are you should know about the Certificate of Title system in conveyancing in Ireland.
Let’s take a look at how it works, shall we, and what it might mean for you as a purchaser?
Good marketable title
If you are not a cash buyer and you are borrowing from a bank your solicitor will have to give the bank a ‘solicitor’s undertaking’. This is an undertaking to obtain good marketable title to the property.
Once good marketable title is obtained the sale will complete and the solicitor will send in the title documents to the lender. The solicitor will then give a Certificate of Title and the bank will rely on this rather than the solicitor’s undertaking and the lender will hold onto the documents of title.
Once the bank’s mortgage is secured on the property and good marketable title has been obtained then the bank will be able to move on the property if there is a default on the loan.
It is a rare enough occurrence in Ireland, quite frankly, but when the bank does repossess a property they want to know they can sell it without any major title problems.
And they will already have the solicitor’s certificate, which certifies title, and on which they will rely.
If any problems then arise in relation to the sale of the secured property the solicitor who certified titled will have a major problem as the bank will be able to pursue him/her for professional negligence if he failed to notice a major title defect with the property.
How does this affect you?
You may be happy to proceed with the purchase of a property but your solicitor may not if there is a problem which will affect his ability to give an undertaking to obtain good marketable title and to certify title later on.
Problems which would concern a solicitor would be issues such as easements, rights of way, planning permission issues, building regulation problems, septic tanks on someone else’s property, no certificate of compliance from an architect/engineer, and so forth.
Minor issues which might be flagged up in a structural survey may not cause much concern, but the issues would need to be genuinely minor.
Qualification on title
If any of these serious issues arise the solicitor will write to the lender and state that he proposes qualifying his undertaking and certificate of title due to the problem he has encountered and he will ask the bank to accept this qualification and confirm its approval.
The lender may approve or may not agree. If the lender does not agree then the purchase cannot proceed.
The key point to understand is that if you are buying property and there is a lender involved and there is a problem with the title documents to the property the decision to proceed is not yours alone.
Because the solicitor will also be putting his professional indemnity insurance on the line and will naturally wish to have a say.
Without your solicitor giving an undertaking to the lender in the first place and later providing a certificate of title the lender will not advance your loan for completion.
Has the danger passed? Are you just keeping the head down and hoping for the best?
Are you in a good place with respect to compliance or do you still have some concerns but hope the fears generated were exaggerated?
Just to remind you new regulations concerning personal data protection came into force in the EU from 25th May, 2015: the GDPR regulations.
What has happened since then? Was the fear and loathing justified? Was it another “Y2K” scare-all hat and no cattle-or is it too early to decide?
Firstly, GDPR came into effect in Ireland 24 hours after the commencement of a new data protection act, the Data Protection Act, 2018. There is a certain degree of trepidation amongst data controllers and processors that this new law will lead to a significant increase in the number of legal cases arising as a result of breaches for the law now allows data subjects bring civil actions for compensation.
Data subjects can also now authorise not for profit organisations to bring complaints and act on their behalf. This kind of “class” action is a new development in Ireland and is likely to be availed of when there is a significant breach of personal data on a wide scale affecting a large number of individuals.
Two of these not for profit type organisations, NOYB (‘None of Your Business’) in Austria and La Quadrature du Net (‘La Quad’) filed complaints in some European countries against large tech companies within a short time of GDPR coming into effect. There is nothing stopping them from popping up in Ireland.
Right to Compensation and Damage
The right to compensation and damage is set out in regulation 82 which states,
Right to compensation and liability
1. Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.
2. Any controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation. A processor shall be liable for the damage caused by processing only where it has not complied with obligations of this Regulation specifically directed to processors or where it has acted outside or contrary to lawful instructions of the controller.
3. A controller or processor shall be exempt from liability under paragraph 2 if it proves that it is not in any way responsible for the event giving rise to the damage.
4. Where more than one controller or processor, or both a controller and a processor, are involved in the same processing and where they are, under paragraphs 2 and 3, responsible for any damage caused by processing, each controller or processor shall be held liable for the entire damage in order to ensure effective compensation of the data subject.
5. Where a controller or processor has, in accordance with paragraph 4, paid full compensation for the damage suffered, that controller or processor shall be entitled to claim back from the other controllers or processors involved in the same processing that part of the compensation corresponding to their part of responsibility for the damage, in accordance with the conditions set out in paragraph 2.
6. Court proceedings for exercising the right to receive compensation shall be brought before the courts competent under the law of the Member State referred to in Article 79(2).
The game changer in this regulations is the reference in subsection 1 to “material or non-material damage”.
Up to this point you had to show you had suffered actual loss or damage in Ireland to be compensated, but you could not be compensated for non-material damage.
You will also see that subsection 1 refers to “controller or processor”. Prior to this only the controller could be held liable but now a processor can be also named as a defendant.
Article 78 sets out the right of the data subject to sue-that is, a judicial remedy. It states,
Right to an effective judicial remedy against a supervisory authority
1. Without prejudice to any other administrative or non-judicial remedy, each natural or legal person shall have the right to an effective judicial remedy against a legally binding decision of a supervisory authority concerning them.
2. Without prejudice to any other administrative or non-judicial remedy, each data subject shall have the right to a an effective judicial remedy where the supervisory authority which is competent pursuant to Articles 55 and 56 does not handle a complaint or does not inform the data subject within three months on the progress or outcome of the complaint lodged pursuant to Article 77.
3. Proceedings against a supervisory authority shall be brought before the courts of the Member State where the supervisory authority is established.
4. Where proceedings are brought against a decision of a supervisory authority which was preceded by an opinion or a decision of the Board in the consistency mechanism, the supervisory authority shall forward that opinion or decision to the court.
This right to bring a data protection action in Ireland is set out in section 117 of Data Protection act, 2018. This action is founded on tort-that is, a civil wrong, and can be instituted in the Circuit Court or High Court.
Section 117 obliges the plaintiff data subject to prove that
his or her rights under a relevant enactment have been infringed as a result of the processing of his or her personal data in a manner that fails to comply with a relevant enactment
The critical change now is a data subject can sue for material and non material damage and non material damage is set out in recital 85 as follows:
A personal data breach may, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons such as loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned
You will see from regulation 82 above, section 2, that the controller and processor will be held liable where they are not compliant with the regulations; it is irrelevant whether they were negligent or at fault in any way.
How much compensation?
It is too early to say what level of compensation Irish courts will award, especially for non material damage such as damage to reputation or unauthorised reversal of pseudonymisation or loss of confidentiality.
Clearly, from the perspective of a controller or processor the smart thing to do is try to ensure that there is no breach of personal data rights in the first place. However, it is vital that a breach is notified to the Data Protection Commissioner within 72 hours of becoming aware of the breach as the Act refers to doing so “without undue delay”.