barrister at small claims court

Graces7

just had response from the other side re a claim we are making and it was clearly written by their barrister.
from previous encounters we know this
i know that legal counsel is allowed but will this not put us at some disadvantage. it is a very simple matter of damages.

toughapple

Graces7 wrote: »

just had response from the other side re a claim we are making and it was clearly written by their barrister.
from previous encounters we know this
i know that legal counsel is allowed but will this not put us at some disadvantage. it is a very simple matter of damages.

Maybe so. Either lawyer up or suck it up. Everyone has a right to be represented.

Fred Swanson

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Beano

Unlikely to be a barrister though, surely? A solicitor possibly but i cant see anybody hiring a barrister for a small claims court case.

Fred Swanson

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Graces7

toughapple wrote: »

Maybe so. Either lawyer up of r suck it up. Everyone has a right to be represented.

excuse me but the whole purpose of the small claims court i that legal representation is not needed. barristers etc cost.

Fred Swanson

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Beano

Fred Swanson wrote: »

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A bit confused here. Is the small claims court not for consumers to take action against businesses? Why would a person be a respondent in a small claims court case?

Fred Swanson

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Beano

Graces7 wrote: »

excuse me but the whole purpose of the small claims court i that legal representation is not needed. barristers etc cost.

You are correct, there is no requirement for representation. The court clerks in the SCC are supposedly very helpful to lay plaintiffs.

The respondent in a SCC is a business. A business is a separate legal entity that needs to be represented. An officer of the company could represent it but unless they are well versed in the law they could expose the company to further liability is they act incorrectly. Its easier for the company to employ a solicitor.

Beano

Fred Swanson wrote: »

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Indeed it must. and the officers of the company are obliged to obtain the legal representation that is in the best interests of the company. If that requires 2 QCs then so be it. There may be more hanging on the case than merely one claim against them.

Fred Swanson

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Beano

Fred Swanson wrote: »

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Well then a solicitor at the very least is then required. Possibly a barrister too if opinions are required.

Fred Swanson

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Beano

Fred Swanson wrote: »

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well then hiring 2 QCs would seem to be entirely sensible. Though in ireland the next step would be to the Circuit Court.

Fred Swanson

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Beano

the wheels of justice are turning as they should then.

Pat Mustard

Companies and businesses will probably have representation.

In relation to Small Claims Court issues, if you look at the fact that the max jurisdiction is €2000, any sort of half decent fee will be disproportionate to the amount in dispute.

I suppose that a solicitor could assist with the preparation of the papers in the first place. Depending on the circumstances, it might not be worth it for a client to pay for representation in the Small Claims Court.

Bepolite

The company could easily have in house counsel or outsorced legal rep. Why have a dog and bark yourself?

(at work no spell check sorry)

Graces7

Beano wrote: »

You are correct, there is no requirement for representation. The court clerks in the SCC are supposedly very helpful to lay plaintiffs.

The respondent in a SCC is a business. A business is a separate legal entity that needs to be represented. An officer of the company could represent it but unless they are well versed in the law they could expose the company to further liability is they act incorrectly. Its easier for the company to employ a solicitor.

s

not always so. there is facility for damages claims. ie against individuals.

yes the court clerks are very helpful.

yes it is a barrister. will be an interesting day indeed.

Graces7

The Mustard wrote: »

Companies and businesses will probably have representation.

In relation to Small Claims Court issues, if you look at the fact that the max jurisdiction is €2000, any sort of half decent fee will be disproportionate to the amount in dispute.

I suppose that a solicitor could assist with the preparation of the papers in the first place. Depending on the circumstances, it might not be worth it for a client to pay for representation in the Small Claims Court.

exactly so; thank you. we are well able in our preparation thankfully as the case is straightforward as the case is .

Graces7

Fred Swanson wrote: »

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this case is happening in reverse order,

Graces7

Fred Swanson wrote: »

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this is it in a nutshell;)

toughapple

Graces7 wrote: »

excuse me but the whole purpose of the small claims court i that legal representation is not needed. barristers etc cost.

Just because it is not needed doesn't mean that one can legitimately complain when the other side is represented. The same could be said of the other courts.

Beano

toughapple wrote: »

Just because it is not needed doesn't mean that one can legitimately complain when the other side is represented. The same could be said of the other courts.

this has already been explained. If the respondent in a SCC case is a limited company then it MUST obtain legal representation as it cannot represent itself in court.

Claw Hammer

Beano wrote: »

this has already been explained. If the respondent in a SCC case is a limited company then it MUST obtain legal representation as it cannot represent itself in court.

Limited companies are often represented by managers. The Small Claims Court can allow a right of audience to anybody it chooses and often does. Some claimants are assisted by friends or relatives who speak up for them despite the fact that the friend or relative wouldn't have right of audience in court normally. The whole point is that it is small claims and each side is encouraged to keep costs down and the procedure is relatively informal.

Beano

Claw Hammer wrote: »

Limited companies are often represented by managers. The Small Claims Court can allow a right of audience to anybody it chooses and often does. Some claimants are assisted by friends or relatives who speak up for them despite the fact that the friend or relative wouldn't have right of audience in court normally. The whole point is that it is small claims and each side is encouraged to keep costs down and the procedure is relatively informal.

A business has to be legally represented. see http://www.citizensinformation.ie/en/justice/courts_system/small_claims_court.html

AndonHandon

If a business is appealing a SCC decision to the Circuit Court them presumably they will bear the entire costs of such an appeal?

Alan_P

Beano wrote: »

A business has to be legally represented. see http://www.citizensinformation.ie/en/justice/courts_system/small_claims_court.html

If you mean they have to be represented by legal professionals, that's not what I observed when I took a SCC case a few years. In the majority of cases the companies concerned just had their own, non-legal staff arguing their case.

They do have to be represented in the sense that if they don't send anyone, they will automatically lose the case.

Beano

Alan_P wrote: »

If you mean they have to be represented by legal professionals, that's not what I observed when I took a SCC case a few years. In the majority of cases the companies concerned just had their own, non-legal staff arguing their case.

They do have to be represented in the sense that if they don't send anyone, they will automatically lose the case.

I dont know what a few years means but it is not the case at present. This was clarified some time ago. They must now be legally represented .

Claw Hammer

Beano wrote: »

I dont know what a few years means but it is not the case at present. This was clarified some time ago. They must now be legally represented .

That is not the case. Judges have discretion as to who they hear in cases. See for example.
http://www.irishexaminer.com/ireland/judge-tells-ff-executive-member-to-face-reality-on-debt-137776.html

"Despite having no such entitlement, the judge said he had allowed Mr Beades to be heard last week and he had given him “a full hearing”."

The judges in the District Court will always exercise their discretion and allow managers to represent companies in the small claims court.

Alan_P

Beano wrote: »

I dont know what a few years means but it is not the case at present. This was clarified some time ago. They must now be legally represented .

A few years ago I meant.

Doesn't that mean that companies being sued in the SCC can't win, given that most claims are likely to be be below the cost of legal representation, and they're not going to get awarded costs anyway ?

No matter how convinced they are they're right, it will nearly always be cheaper to settle the claim anyway.

Beano

Claw Hammer wrote: »

That is not the case. Judges have discretion as to who they hear in cases. See for example.
http://www.irishexaminer.com/ireland/judge-tells-ff-executive-member-to-face-reality-on-debt-137776.html

"Despite having no such entitlement, the judge said he had allowed Mr Beades to be heard last week and he had given him “a full hearing”."

The judges in the District Court will always exercise their discretion and allow managers to represent companies in the small claims court.

We were discussing the small claims court. And the judge made it clear that he was not entitled to represent the company.

The judge told him he could not do so because as he had no entitlement under law to represent Fairlee.

You will also note that his being allowed to appear had no bearing on the outcome.

I doubt a company in small claims court would be shown the same discretion given the much lower amounts involved. It also doesnt change the fact that a company must be legally represented.

Beano

Alan_P wrote: »

A few years ago I meant.

Doesn't that mean that companies being sued in the SCC can't win, given that most claims are likely to be be below the cost of legal representation, and they're not going to get awarded costs anyway ?

No matter how convinced they are they're right, it will nearly always be cheaper to settle the claim anyway.

It does certainly swing it in favour of the consumer. Given the much greater resources of most businesses i dont think this is a bad thing.

Tom Young

Barristers are called to the Bar by the Chief Justice and appear with full right of audience before any court in this jurisdiction.

Appearance is by right, not by invitation. Any court includes the Small Claims Court.

In terms of an appearance for a Company. This was clarified by the Supreme Court many years ago in the case of Battle v Irish Art Promotions. A company must be represented by a solicitor. In exceptional cases the board of a company may, once resolved and written to on letterhead and under seal, nominate a person to appear on the Company's behalf. That is the exception rather than the rule.

The High Court clarified the position on attendance by a solicitor in the lower court in the case of Heinullian.

Claw Hammer

Alan_P wrote: »

A few years ago I meant.

Doesn't that mean that companies being sued in the SCC can't win, given that most claims are likely to be be below the cost of legal representation, and they're not going to get awarded costs anyway ?

No matter how convinced they are they're right, it will nearly always be cheaper to settle the claim anyway.

That is why the judges don't insist on them being represented. Even to have a manager leave a shop for half a day can be costly.

Beano

Claw Hammer wrote: »

That is why the judges don't insist on them being represented. Even to have a manager leave a shop for half a day can be costly.

You need to stop this now. The rules on this are very clear.

Claw Hammer

Beano wrote: »

You need to stop this now. The rules on this are very clear.

I don't need to stop anything. It is clear that judges have discretion. It is also the case that they use it. Go to the Small Claims Court any day of the week and see what happens.
P. M. L. B.

PLAINTIFF
and on behalf of P. R. B.

by Power of Attorney, and at his request

and on behalf of E. J. D. B

by Power of Attorney, and at his request

and on behalf of J. G. L. B. and

S. M. D. B., Minors in Sole

Custody of Plaintiff
-and-

P. H. J. AND P. H. J. AND COMPANY and THE INCORPORATED LAW SOCIETY OF IRELAND
(1991/4815 P, 4814 P, 4813 P - Budd J. - 5/5/92)

"In general, and without attempting to work out hard-and-fast rules, discretionary audience should be regarded, in my opinion, as a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straight forward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on Counsel. Expecially in minor matters cost saving could also be a relevant factor."

Pat Mustard

Claw Hammer wrote: »

I don't need to stop anything. It is clear that judges have discretion. It is also the case that they use it. Go to the Small Claims Court any day of the week and see what happens.

The Examiner article that you linked does not support your argument. It appears that the judge had previously allowed Beades to speak in spite of a lack of right of audience. It appears that he had overlooked the legal position. Kelly J. acknowledged this, himself.

In fact, the complete position is really this:

At that point, Jerry Beades asked the judge if he could address the court and apologised for being late. The judge told him he could not do so because as he had no entitlement under law to represent Fairlee.
Despite having no such entitlement, the judge said he had allowed Mr Beades to be heard last week and he had given him “a full hearing”.
Mr Beades asked for a stay on the order, but the judge again told him he had no entitlement to appear on behalf of Fairlee.

Link

Battle v Irish Art Promotion Centre Ltd (1968)
The defendant company was involved in legal proceedings but did not have enough money for legal representation. The plaintiff, who was the major shareholder and managing director of the company, sought to conduct the company's defence. The court held that while a human person can represent him or herself in court, a legal person such as a company can only be represented by a solicitor or barrister.

Also, see GCD notes. P.4

The legal position is clear, that a company needs to have representation.

The law is misapplied on a regular basis in the lower courts. I wouldn't doubt that a manager from a company could turn up to represent a small company and that the Small Claims Registrar might never have heard of the Battle v Irish Art Promotions case.

I saw one solicitor say to a District Judge that he would like to apologise in advance for any leading questions that he might ask a witness, to which the response from the bench was; "Lead away, Mr. X"

The District Court is about crowd control rather than application of law. It is about getting through long lists of cases. The system works, considering that there is a right of appeal.

If a judge misapplies the law or overlooks procedure, redress can be got from another forum. However, if the outcome of the litigation is favourable despite such misapplication of the law, then there would be no reason for a successful litigant to query it.

Claw Hammer

The Mustard wrote: »

The Examiner article that you linked does not support your argument. It appears that the judge had previously allowed Beades to speak in spite of a lack of right of audience. It appears that he had overlooked the legal position. Kelly J. acknowledged this, himself.

In fact, the complete position is really this:



Link


Also, see GCD notes. P.4

The legal position is clear, that a company needs to have representation.

The law is misapplied on a regular basis in the lower courts. I wouldn't doubt that a manager from a company could turn up to represent a small company and that the Small Claims Registrar might never have heard of the Battle v Irish Art Promotions case.

I saw one solicitor say to a District Judge that he would like to apologise in advance for any leading questions that he might ask a witness, to which the response from the bench was; "Lead away, Mr. X"

The District Court is about crowd control rather than application of law. It is about getting through long lists of cases. The system works, considering that there is a right of appeal.

If a judge misapplies the law or overlooks procedure, redress can be got from another forum. However, if the outcome of the litigation is favourable despite such misapplication of the law, then there would be no reason for a successful litigant to query it.

[2008] 436
1 I.R.
Gabriel Coffey , Plaintiff v. Tara Mines Limited, Defendant
[2007] IEHC 249

Held by the High Court ( Ó Néill J.), in finding in favour of the plaintiff, 1, that the court possessed an inherent jurisdiction to manage and control its own proceedings and in rare and exceptional cases, such as those in the present case, could permit an unqualified advocate to represent another litigant.

The law was not overloked in the Fairlee case. The judge allowed it as he was entitled to do. He refused to do it on another occasion as he was entitled to do. The courts have a discretion to overlook the right of audience rule which happens regularly in the Small Claims Court. This is approved by the High Court in the decisions PMLG and Coffey which I have cited.

Pat Mustard

Claw Hammer wrote: »

The law was not overloked in the Fairlee case. The judge allowed it as he was entitled to do. He refused to do it on another occasion as he was entitled to do. The courts have a discretion to overlook the right of audience rule which happens regularly in the Small Claims Court. This is approved by the High Court in the decisions PMLG and Coffey which I have cited.

See here:
In Re Coffey [2013] IESC 11 (Supreme Court, Fennelly J, 26 February 2013)

36. In Coffey v Tara Mines Limited [2008] 1 I.R. 436, O’Neill J. thought that Battle v Irish Art Promotion Centre Ltd did not preclude him from exercising an inherent jurisdiction where, in his view, there was in existence “a combination of circumstances that are so exceptional or rare as to probably, be unique.” He permitted the plaintiff to be represented by his wife because he had formed the view that the action would proceed no further, and that is an outcome or consequence that would be destructive of the interests of justice.”

37. In conclusion, the general rule is clear. Only a qualified barrister or solicitor has the right, if duly instructed, to represent a litigant before the courts. The courts have, on rare occasions, permitted exceptions to the strict application of that rule, where it would work particular injustice. The present case comes nowhere near justifying considering the making of an exception. Mr. Podger seeks nothing less than the general right to appear on behalf of a group of thirteen litigants and to plead their cases to precisely the same extent as if he were a solicitor or counsel, which he accepts that he is not, but without being subject to any of the limitations which would apply to professional persons.

Claw Hammer

The Mustard wrote: »

See here:

I have referred to that case. It clearly holds that there is a discretion regarding a right of audience. It can be, and is, used in the samll claims court. As for leading witnessess the solicitor asked if he could do it and was allowed to. The courts can and do allow witnesses to be led in some circumstances. Most likely it was a case where there was no appearance by the other side and the evidence was only a matter of form.

Pat Mustard

Claw Hammer wrote: »

As for leading witnessess the solicitor asked if he could do it and was allowed to. The courts can and do allow witnesses to be led in some circumstances. Most likely it was a case where there was no appearance by the other side and the evidence was only a matter of form.

No. It was a fully contested case, with the defence solicitor objecting to introduction of evidence by leading the witness.

Claw Hammer wrote: »

I have referred to that case. It clearly holds that there is a discretion regarding a right of audience. It can be, and is, used in the samll claims court.

No, you did not refer to it. In fact you seem to have completely ignored the 2013 Supreme Court judgment, which sets out the position. Again:

In conclusion, the general rule is clear. Only a qualified barrister or solicitor has the right, if duly instructed, to represent a litigant before the courts. The courts have, on rare occasions, permitted exceptions to the strict application of that rule, where it would work particular injustice. The present case comes nowhere near justifying considering the making of an exception. Mr. Podger seeks nothing less than the general right to appear on behalf of a group of thirteen litigants and to plead their cases to precisely the same extent as if he were a solicitor or counsel, which he accepts that he is not, but without being subject to any of the limitations which would apply to professional persons.

Pro Hoc Vice

http://www.justice.ie/en/JELR/Pages/Ahern%20extends%20Small%20Claims%20Procedure%20to%20cover%20business%20claims

"It should be noted that Irish jurisprudence currently requires limited liability companies to engage legal representation for an court based proceedings. The Minister has requested that this precedent be reviewed by the Company Law Review Group."

Claw Hammer

The Mustard wrote: »

No, you did not refer to it.

Where do you think I got this from?

Held by the High Court ( Ó Néill J.), in finding in favour of the plaintiff, 1, that the court possessed an inherent jurisdiction to manage and control its own proceedings and in rare and exceptional cases, such as those in the present case, could permit an unqualified advocate to represent another litigant.

The Mustard wrote: »

In fact you seem to have completely ignored the 2013 Supreme Court judgment, which sets out the position. Again:

The Supreme Court case did not change anything. It is a restatement of the law as it has been understood for years.

It is quite simple. A person who is not a solicitor cannot insist on speaking on behalf of another wheteh a natural person or a company.
The Court can, in it's discretion allow such a person to speak on behalf of another.
This case was not over ruled and is availed of in the Small Claims Court regularly.

" or in straight forward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on Counsel. Expecially in minor matters cost saving could also be a relevant factor."

Beano

Why is this still being debated? Its simple. Only a qualified barrister or solicitor has the right to represent a litigant before the courts. At the judges discretion a lay litigant may be allowed to appear.

Claw Hammer

Beano wrote: »

Why is this still being debated? Its simple. Only a qualified barrister or solicitor has the right to represent a litigant before the courts. At the judges discretion a lay litigant may be allowed to appear.

Some people think otherwise.

Pat Mustard

Why say that you had referred to the 2013 judgment, when you had not?

The court's discretion to allow a layman a right of audience is to be used under rare and exceptional circumstances, where there exists “a combination of circumstances that are so exceptional or rare as to probably, be unique", according to O' Neill in the 2008 judgment.

The 2013 judgement clarifies that on rare occasions a layman would only be allowed a right of audience where a particular injustice would arise otherwise. The 2013 judgment demonstrated that Mr. Percy Podger was not permitted to appear on behalf of thirteen litigants.

Claw Hammer

The Mustard wrote: »

Why say that you had referred to the 2013 judgment, when you had not?

The court's discretion to allow a layman a right of audience is to be used under rare and exceptional circumstances, where there exists “a combination of circumstances that are so exceptional or rare as to probably, be unique", according to O' Neill in the 2008 judgment.

The 2013 judgement clarifies that on rare occasions a layman would only be allowed a right of audience where a particular injustice would arise otherwise. The 2013 judgment demonstrated that Mr. Percy Podger was not permitted to appear on behalf of thirteen litigants.

You were quoting from the previous judgement of O neill J which I had quoted and which was approved. The 1992 judgement of Bidd J was not overruled.
The fact the Percy Podgers was not allowed appear on behalf of others in the SUpreme Court is irrelevant.

Pat Mustard

Claw Hammer wrote: »

You were quoting from the previous judgement of O neill J which I had quoted and which was approved.

No. Look at my post to which you had referred. This is a 2013 judgment. You had made no reference to any 2013 judgment, but you said that you had.

In Re Coffey [2013] IESC 11 (Supreme Court, Fennelly J, 26 February 2013)

Claw Hammer wrote: »

The fact the Percy Podgers was not allowed appear on behalf of others in the SUpreme Court is irrelevant.

The 2013 judgment illustrated the type of situation where the discretion will not be used. Of course it is relevant.

Claw Hammer

The Mustard wrote: »

No. Look at my post to which you had referred. This is a 2013 judgment. You had made no reference to any 2013 judgment, but you said that you had.



The 2013 judgment illustrated the type of situation where the discretion will not be used. Of course it is relevant.

The Supreme Court and the Small Claims Court are entirely different. There is no costs recovery avaialable in the Small Claims Court. A company could well spend more than the value of the claim on costs dealing with an entirely on meritorious claim, with no prospect of recovery. The issues would be extremely simple, not requiring the assistance of a qualified lawyer and thus will come within the circumstances identified by Budd J.