High Court denies litigant in person representation for company due to lack of serious injustice.

THE HIGH COURT 2025/1098/JR

BETWEEN

CARAGLASS LIMITED T/A ZEEKO

PLAINTIFF

AND

MINISTER FOR EDUCATION

DEFENDANT

RULING (ex tempore) Ms. Justice Mary Rose Gearty delivered on 31st July, 2025

1. This application concerns the right of a litigant in person to represent a company, and his argument that there is a serious issue arising in the context of a procurement process to supply mobile phone pouches to schools across the country.

2. Mr. Joe Kenny, CEO of the Applicant company, asks for leave to judicially review a

decision by the proposed Respondent to cancel a procurement process to supply mobile phone pouches in which, according to Mr. Kenny, the proposed Applicant was in a strong position to succeed as it had submitted the most competitive tender. Mr. Kenny also requests interim relief staying the procurement process, primarily on the grounds of safety issues.

3. The decision to cancel the original process was taken on 30th May 2025. Mr. Kenny advises that the company cannot afford a lawyer and urges me to permit him to address the Court, despite the default rule that forbids a litigant in person to represent a corporate body in court proceedings. The law in this respect is set out below and, given my conclusion that it is only in exceptional circumstances that such a course can be taken, I have also considered the averments and correspondence in the case, together with Mr. Kenny’s submissions, in order to determine if this is an exceptional case such that the general rule can be ignored.

Representation of Companies in Court

4. In general, companies cannot be represented by litigants in person but must instruct lawyers to represent them in court. Ó Dálaigh C.J., in Battle v Irish Art Promotion Centre Ltd [1968] 1 I.R. 252, summarises the reason for the restriction of this right:

“in the absence of statutory exception, a limited company cannot be represented in court proceedings by its managing director or other officer or servant. This is an infirmity of the company which derives from its own very nature. The creation of the company is the act of its subscribers; the subscribers, in discarding their own personae for the persona of the company, doubtless did so for the advantages which incorporation offers to traders. In seeking incorporation they thereby lose the right of audience which they would have as individuals; but the choice has been their own”.

5. The Supreme Court reaffirmed this statement of the law in Re Applications for Orders in Relation to Costs in Intended Proceedings: Coffey & ors. [2013] IESC 11. In Coffey v Tara Mines Limited [2008] 1 I.R. 436, as Mr. Kenny pointed out in his submissions, Ó Néill J. allowed a wife to speak for her husband in court, as there was in his view, “a combination of circumstances that are so exceptional or rare as to probably, be unique”. His view was that the action would proceed no further if he did not so permit, and “that is an outcome or consequence that would be destructive of the interests of justice”.

6. The general rule therefore, to paraphrase the Supreme Court in Coffey, is that only a qualified barrister or solicitor has the right, if so instructed, to represent a litigant before the courts. The courts permit rare exceptions, where applying the rule would work a serious injustice.

7. Considering and restating the factors outlined by Finlay Geoghegan J. in Allied Irish Bank plc v Aqua Fresh Fish Ltd [2018] IESC 49, this Court can conclude as follows:

the starting point is always the general rule that a company has no right to lay representation and the circumstances which warrant departure from the rule are rare.

All the relevant facts must be considered. The impecuniosity of a company or the lack of available funds in a company to procure legal representation is not exceptional or even unusual. It is a circumstance which in commercial life often occurs. The fact that Mr. Kenny is the CEO is not an exceptional circumstance. A company seeking to be represented will probably seek to be represented by a CEO, a principal shareholder or director. Nor are the factors above, in combination, an exceptional situation, as this combination of factors will often occur.

8. In order to determine if the circumstances of the case are exceptional, the Court must consider the facts of the case as alleged and the applicable law. If the refusal to allow Mr. Kenny to represent the company would be destructive to the interests of justice, as it was phrased by Ó Néill J., it may be appropriate to allow him to represent the company.

Procurement Time Limits and Pouch Tests

9. Order 84A governs the procedure applicable and, read in conjunction with Regulation 7(2) of the EC (Public Authorities’ Contracts) (Review Procedures) Regulations 2010, S.I. No. 130 of 2010, as amended, challenges to a decision to which the Public

Procurement Remedies Regulations apply must be taken within calendar 30 days of notification of the decision, or the applicant knew or ought to have known of the alleged infringement.

10. The decision in respect of the procurement process was made on 30th May but the application was made in July. Mr. Kenny claims that the application is within time as it was only on 14th June that he successfully set fire to a pouch which, he submits, means that the pouches included in the original tender were not compliant with product safety regulations. The papers filed include detailed specifications in respect of the pouches produced by the Applicant and criticism, on the basis of a lack of resistance to fire, of other products produced by rival companies. This criticism is based on what are described as “informal reports”.

11. In short, Mr. Kenny (or someone on his behalf) set fire to various pouches produced by other companies and took photos of the resulting flames emerging from the products.

This, in his submission, is sufficient evidence of the failure to comply with the relevant product safety regulations. These “informal” tests were carried out on a number of products after the cancellation of the tendering process.

12. I note from the exhibits filed that in the original invitation to tender, as in the second invitation, it was made clear that the Department could cancel the tender at any time.

In correspondence, the Applicant company raised issues with the Chief State Solicitor [CSS] (acting for the intended Respondent) including the basis for the cancellation of the original procurement process. In reply, the CSS noted that the process was cancelled due to a decision by the buyer. In later correspondence, the CSS gave more detail in respect of challenges to the process and further testing carried out as a result of those challenges. None of these explanations was contrary to the original reason, contrary to the submission made by Mr. Kenny. The two responses were consistent and the second had more detail than the first. I do not agree that this is evidence of a process that was lacking in transparency.

13. The more important question is when the time began to run. In a public procurement process, the time limit for challenges is a vital protection of the public interest so that such processes may not be delayed or hindered by challenges which are not advanced with urgency and diligence. Mr. Kenny rests his explanation on the date of the informal tests conducted on other pouches. This cannot form the basis for an extension of time in this matter, in my view. Put otherwise, and with a view to the test I must apply, there is no evidence here of a serious injustice which will not be addressed unless I permit Mr. Kenny to present this case instead of insisting that he instruct a lawyer to do so.

The informal tests show that a person may set fire to one of these pouches if she puts her mind to it. This is far from establishing, as Mr. Kenny submits, that dangerous products are about to be put on the market. I note the CSS reassurance that a suite of safety requirements was set out in the new procurement process.

14. Since the informal testing and the lodging of the papers in the case, Mr. Kenny tells me that the second tendering process has closed and that he and one other competitor have been successful. He has not challenged this second process, but the original procurement process. The other successful company to tender makes phone pouches that, according to Mr. Kenny, have failed the informal test that he set, conducted and reported on before results of that second process were available and in the aftermath of the cancellation of the first process.

15. Again, this does not establish the kind of injustice that the Court must step in to investigate and remedy. It seems to me that, in light of the case law, the test to be applied is not that usually applicable in judicial review proceedings in that it is not only for Mr. Kenny to establish an arguable case. He must point to the kind of injustice that would justify my setting aside the usual rule that companies must be represented in court by lawyers. In this case, the height of the argument for this Applicant is not that the process was cancelled (this argument is out of time) nor is it that there is a lack of transparency (as commented on above the reasons for cancellation are sufficient in my view) but appears to revolve around an informal test as to the properties of rival products involved in the first process, which has now been cancelled. There is no reason given as to why this test was conducted on the 14th June and there is no reason why the Court should consider extending time in this case on the basis of this evidence with no independent verification, no reason offered as to why the test was not conducted at an earlier date and when the context in which this informal testing took place has now changed in that a second, separate procurement process has been completed.

Conclusion

16. I cannot identify the kind of exceptional grounds described by the courts in Coffey and Aqua Fresh Fish. The impecuniosity of the company and Mr. Kenny’s knowledge of the subject matter of the process being challenged are insufficient to create an exception. Having considered the facts set out in the grounding affidavit and exhibits, I cannot identify circumstances which would create a serious injustice to the Applicant nor is there any cogent evidence of a risk to public health if this case is not permitted to proceed and I must refuse Mr. Kenny’s application to represent the Applicant company in the intended action.