High Court rules McKenzie friend cannot address court as advocate without solicitor or counsel instruction.

[2017] IEHC 496

THE HIGH COURT

RULING

[2016 No. 1222 P.]

BETWEEN

HENRY SWORDS

PLAINTIFF

AND

AIB BANK PLC AND AIB LEASING LIMITED

DEFENDANTS

RULING of Mr. Justice Eagar delivered on the 27th day of July, 2017

1. In this case Mr. Swords was not represented by a solicitor or counsel but was accompanied by a McKenzie friend.

2. In accordance with that decision the court is ruling that any person whether he be a professional man or not may attend as a

friend of either party, may take notes, may quietly make suggestions to the party and give advice but he cannot take part in the

proceedings as an advocate. The McKenzie friend has no right to address the court unless invited to do so by the presiding judge and

at this time the presiding judge is not inviting the McKenzie friend to address the court.

3. In the case of Sheila Coffey & others Fennelly J. stated the fundamental rule is that the only persons who enjoy a right of audience

before our courts are the parties themselves when not legally represented, a solicitor duly and properly instructed by a party and

counsel duly instructed by a solicitor to appear for a party. That rule does not exist for the purpose of protecting a monopoly of the

legal professionals. The limitation of the right of audience to professional qualified persons is designed to serve the interests of the

administration of justice and thus the public interest.

4. The exclusive right of counsel to audience in the courts is derived from the common law. In order to extend that right in the case

of the Superior Courts to solicitors it was necessary to enact s. 17 of the Courts Act 1971. Thus the right of audience is regulated by

law. Whatever the reason there is an inevitable number of cases before the courts where litigants are unrepresented. In those cases,

they have the right to represent themselves. It has to be accepted that this is sometimes unavoidable which is not to say that it is

desirable. There is no doubt that the courts are better able to administer justice fairly and efficiently when parties are represented by

solicitor or counsel.

5. Article 19 of the Statute of the Court of Justice regulates the representation of parties in proceedings before the Court of Justice

of the European Union. Member States and Institutions of the Union must be “be represented before the Court of Justice by an agent

appointed for each side”. The agent “may be assisted by an advisor or by a lawyer”. Most materially the Article then provides:-

“Other parties must be represented by a lawyer.

Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the

Agreement on the European Economic Area may represent or assist a party before the court.”

6. It is clear therefore that there is no warrant for the claim that in the application of European law or the European Convention or on

human rights specifically either by the Court of Justice or the European Court of Human Rights that there is any obligation on the

Court of a Member State to permit a litigant to be represented by a person other than a duly qualified lawyer.