Court dismisses appeal on procedural grounds, deferring complex legal questions on company representation status to future proceedings.

THE COURT OF APPEAL

Kelly J

Peart J.

Hogan J

2014/1339 (SC 371/14)

[Article 64 Transfer]

DECLAN MCDONALD

PLAINTIFF

-V–

MCCAUGHEY DEVELOPMENTS LIMITED (IN RECEIVERSHIP) AND MARTIN MCCAUGHEY

DEfENDANTS

JUDGMENT (ex tempore) delivered on the 8th day of July 2015 by Mr. Justice Hogan

1. I agree with the judgment of Mr. Justice Kelly and I would just like to add some words of my own.

2. This appeal presents potentially difficult questions of law, in particular the status of the Supreme Court decision in Battle v. Irish

Art Promotions Ltd. [1968] I.R. 252. In the light of what Mr. Justice Kelly has said I think it is appropriate that this Court should not

consider these questions, at least at this juncture.

3. It is, of course, true, as Chief Justice Ó Dálaigh said himself in another case, The State (Quinn) v. Ryan [1965] I.R. 70, 120, that a

point not argued is a point not decided. Accordingly, were this issue to proceed this Court would have to consider not only the status

of Battle, but also whether or not any qualifications or modifications to that rule would now be required in the light of points that

were certainly not ventilated in Battle. This issue would certainly include the right of access to the courts guaranteed by Article 34 of

the Constitution, the guarantee of fair procedures, along with the right of an individual to form an association (including a limited

company) under Article 40.6.iii. This might also involve a consideration of whether the protection of the substance of these rights

would mean that a rule which provided that in every single case that a company be represented by professional lawyers could thus be

sustained. It is also possible that the maintenance of the Battle rule would raise questions arising under Article 6 of the European

Convention of Human Rights. But these difficult and in some respects novel questions of law which as Mr. Justice Kelly has pointed

out, and indeed Mr. Justice Gilligan had already pointed out, have been ventilated in many other common law jurisdictions since Battle

was first decided, should really await a case where it is necessary and appropriate for those points to be decided.

4. I, for my own part, would wish to compliment both sides on the very elegant way in which the issue has been presented. But in the

light of the way in which it was presented I think it is not necessary for this court to determine these potentially difficult questions,

having regard to the fact that it is now clear that both sides accept that Mr. McCaughey would be entitled to raise all relevant and

pertinent points in the plenary procedures such as might otherwise be appropriately reserved to the company alone.

5. In these circumstances and given that the plenary proceedings are going to be determined first it is now unnecessary for this court

to venture to consider these wider questions and in these circumstances I agree with what Mr. Justice Kelly proposes.

6. I would merely add this: in the event that this question was also going to arise in the s.316 proceedings, it should be pointed out

that those are proceedings which are not before this Court. Any issue which arose in those proceedings regarding Mr. McCaughey’s

entitlement to represent the company would be required to be the subject matter of a fresh adjudication by the High Court.

7. It is for those reasons that I agree with the judgment of Mr. Justice Kelly and the order he proposes.