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You are here: BAILII >> Databases >> Irish Court of Appeal >> Y & anor v The Health Service Executive (Approved) [2025] IECA 132 (29 May 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA132.html
Cite as: [2025] IECA 132

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THE COURT OF APPEAL

Court of Appeal Record No: 2025/21

High Court Record No.:2023/10CAB

Neutral Citation No. [2025] IECA 132    

 

Butler J.

Hyland J.

McDonald J.

 

IN THE MATTER OF THE PROCEEDS OF CRIME ACT

 

BETWEEN/

Criminal assets bureau

APPLICANT/RESPONDENT

-AND-

 

NIDA INVESTMENTS LIMITED

RESPONDENT/APPELLANT

JUDGMENT of the Court delivered (ex tempore) by Ms. Justice Butler on the 29th May 2025

1.      This is an ex tempore ruling on the issue of whether Ms. Agne Khan can represent Nida Investments Ltd., a company of which she is the sole director and shareholder, for the purposes of bringing and prosecuting an appeal against the decision of the High Court (Owens J.) made on 18th December 2024.

2.      That decision was made on foot of an application brought by the Criminal Assets Bureau (which I will refer to as the Bureau) for orders under sections 3 and 7 of the Proceeds of Crime Act 1996, as amended, - in other words for what is termed an interlocutory order under section 3 freezing certain assets belonging to the company and then for the appointment of a receiver under section 7 in relation to the company's property.

3.      The proceedings had a lengthy history. The initial order under section 2 of the Proceeds of Crime Act was made on 21st June 2023. That initial order directed not just that the section 3 motion be served on the company as the respondent to the application, but also that Ms. Khan be notified of the making of the section 2 order. The matter then appeared in the Proceeds of Crime list on multiple occasions between the making of the section 2 order in June 2023 and the making of section 3 order in December 2024.

4.      During this time the company was represented by two different firms of solicitors. The first, Steer Law, applied to come off record in February 2024 in circumstances where the solicitor in question averred in an affidavit grounding a motion brought for that purpose as follows: –

"The relationship of trust and confidence between myself and my clients has broken down irreparably. I have received instructions to file an affidavit on behalf of the respondents which I believe would amount to abuse of process. Conscious of my own duty to the Court, as well as the duty owed by counsel, I cannot carry out my client's instructions in this respect. It is clear from the document produces [sic] that the instructions is not coming from the Respondent."

5.      The application was allowed by Owens J. on 21st February 2024. In the course of the hearing of the motion he made it clear to Ms. Khan, who was present in court, that the company could only be represented by a solicitor for the purposes of legal proceedings. He stated as follows:

"If the company wants to be represented it's the company's problem and the shareholders of the company are simply going to have to put money into the company to engage a solicitor, that's their option. If they don't put in money to engage a solicitor that's tough luck. If you turn up on the 20th March without a solicitor for the company, in other words I am going to extend the time to put in an appearance now so that a solicitor can come on record by 14 days, all right, from today. So there must be a solicitor who files an appearance and then you can put in whatever affidavits or whatever you want within the same period because we have to get on with this now and it will be heard on the 20th March...".

6.      The company then engaged a second firm of solicitors, Mulholland Law, and whilst that solicitor was on record a lengthy and detailed replying affidavit was sworn on behalf of the company by Ms. Khan. Relations with the second solicitor also broke down. When the matter was listed in the Proceeds of Crime list on 27th November 2024 counsel instructed by that solicitor appeared and indicated that he was seeking time to bring a motion to come off record. Owens J. acceded to that application and adjourned the substantive matter for hearing to the December list and allowed the motion to be brought for same date.

7.      On 18th December, at the call over of the list, counsel for the Bureau indicated to the court that no formal motion to come off record had been brought but that a letter had been received by email by the solicitor for the Bureau that morning. That email, from the company's second solicitor, was copied to two email addresses for Ms. Agne Khan, and stated as follows:-

"We write to confirm despite the greatest efforts of the legal advisers presently involved for Nida Investments Ltd, there has been an irretrievable breakdown in their professional relationship for a varied [sic] of reasons which would be prejudicial to elaborate upon. This has been flagged with the Respondents whom we are instructed will proceed as lay litigants in the ongoing proceedings."

8.      Ms. Khan does not dispute receipt of this letter. It is clear from its terms that the solicitor/client relationship had broken down and that the company, as client, knew that the solicitor would no longer be representing it and that the solicitor understood the company would proceed as a lay litigant. In fact, once Owens J. granted liberty to come off record there was no appearance by anyone on behalf of the company. It appears that Ms. Khan was not present court on the 18th December.

9.      I was initially troubled by the absence of a formal motion to come off record which is the normal practice where a solicitor is no longer able, for whatever reason, to represent a client. Such a motion is undoubtedly preferable. It establishes the basis for the application and the fact the solicitor's client is served establishes that client's knowledge. However, the Rules of the Superior Courts under Order 7, rule 3 allow a solicitor to make an application to come off record and, under Order 7, rule 4, such an application may be made on an ex parte basis. In circumstances where Owens J. had made it clear that legal representation would be required by the company, where the relationship with Mulholland Law had broken down and correspondence, albeit sent on the day of the hearing, indicated that it was flagged in advance to the company that the solicitor would not be acting, I am satisfied that no injustice was done by proceeding with the application. This is particularly so in a context where it was the sixth occasion on which the matter had been listed for hearing. Four adjournments had been sought by the company and one of the two adjournments sought by the Bureau was because Ms. Khan's affidavit had been filed shortly before the anticipated hearing date.

10.  In circumstances where there was no appearance or representation on behalf of the company, later in the afternoon of 18th December the Bureau moved its application successfully. This was by no means a pro forma matter. It is clear from the transcript and from the exchanges between counsel for the Bureau and the court, that Owens J. had read and took into account all of the evidence.

11.  Ms Khan now wishes to appeal the orders made on 18th December 2024. The Notice of Appeal, which appears to have been prepared by Ms. Khan personally, blurs the distinction between herself and the company. There is also an issue as to whether she was taken by surprise by the making of orders on 18th December and a claim that she understood the substantive hearing would be proceeding on 15th January 2025. I do not intend to go through all of the correspondence relevant to this matter save to observe that by 6th January 2025 at the latest, the company had been formally notified of the making of the orders in correspondence sent to its registered address and Ms. Khan was in receipt of an email from the Bureau's solicitor in which it was clearly stated that orders had been made on 18th December. Ms. Khan does not dispute receipt of this email, but she claims not to have understood its contents.

12.  This brings the court to the point where it is necessary to decide if Ms. Khan can file a Notice of Appeal on behalf of the company and represent the company in court in order to prosecute its appeal and the related motion to admit new evidence brought by Ms. Khan on the company's behalf. In its written legal submissions, the Bureau strongly contends that this cannot be done relying on the decisions of the Supreme Court in Battle v. Irish Art Promotion Centre Ltd [1968] IR 252 and Coffey v. Environmental Protection Agency [2014] 2 IR 125. These decisions establish the general principle that a company cannot be represented in court by its director or other officer or servant as only a qualified barrister or solicitor has a right of audience and the right to represent a litigant before the courts. Fennelly J. in Coffey acknowledged that on rare occasions courts have permitted exceptions to that rule where it would otherwise work a particular injustice to deny a company representation through a director or other officer. This is, however, very much an exception.

13.  Ms. Khan relies on the High Court decision of McDonald v. McCaughey Developments Ltd & Anor [2014] IEHC 455 but I think the Bureau is correct in saying that that case can be distinguished on its facts. Mr. McCaughey was a named defendant in addition to his company and, in that capacity, he was entitled to lead evidence and to make submissions which could be of benefit to his company.

14.  The leading authority on the issue is now AIB v. Aqua Fresh Fish [2019] 1 IR 517. In a decision with which all members of the Supreme Court unanimously agreed, Finlay Geoghegan J. approved the decision of Fennelly J. in Coffey and then proceeded to consider what circumstances might be regarded as exceptional in order to justify a court in exercising its discretion to permit an officer of a company to represent that company in court. I propose to cite from two passages of that judgement - the first at paragraph 41 showing the extent to which the decision in Coffey was approved and the second at paragraphs 46 and 47 looking at the issue of exceptional circumstances.

"41. That conclusion leads to a consideration of the general rule which restricts the right of any litigant to third party representation by a qualified lawyer. For all the reasons set out by Fennelly J. in Coffey v. Environmental Protection Agency ... and the decisions to which he refers, I consider that it is in accordance with the interests of justice and our principles of fair procedures that the right of any litigant to be represented by a third party should, subject to any different statutory entitlement, continue to be confined to a right to be represented by lawyer who has a right of audience before our courts. As pointed out by Fennelly J., barristers have a right of audience at common law. When it was sought to grant solicitors a right of audience, that development was carried out by statute. EU law now provides a right of audience for certain lawyers from other EU jurisdictions. The position as matter of right for litigants is tempered by the inherent jurisdiction to permit lay representation in exceptional cases."

15.  She considered those exceptional cases at a later point in her judgement starting at paragraph 46:-

"46. Insofar as I refer to "exceptional circumstances" I do so deliberately. I am conscious that certain of the earlier decisions referred to "rare and exceptional" circumstances. It does not appear to me that the addition of the term "rare" adds anything to what a court must consider. The starting point is always the general rule that a company has no right to lay representation. The circumstances which lead a court to conclude that it is necessary in the interests of justice to permit representation of a company by a person who is not a qualified lawyer must be exceptional in order that the decision to permit is not one which will warrant common repetition such that the general rule is undermined. It follows that the circumstances which warrant such permission may be considered to be rare and those which may occur often will not usually be considered exceptional. However, all relevant facts must be considered and particular combination of facts which individually might occur more often may be considered exceptional.

47. As has been stated in a number of decisions, unfortunately the impecuniosity of a company or the lack of available funds in a company to procure legal representation is not in any sense exceptional or even unusual. It is a circumstance in which in commercial life often occurs. Hence, that in itself cannot constitute exceptional circumstances. Similarly, a view expressed on behalf of the company that it has a good arguable defence or even the putting up of facts which objectively suggest an arguable defence is not of itself an exceptional set of circumstances."

            Finlay Geoghegan J. then proceeds to deal with the facts of that case.

16.  All of this leads to a point where the Court must now consider the grounds which Ms. Khan has advanced in court today as to why she should be permitted to represent the company. Initially her submission attempted to draw a distinction between the company and herself and to distance the company from her criminal convictions and allegations of criminal behaviour on her part. It is unnecessary at this point for the Court to decide whether Ms. Khan is a suitable person, on a personal basis, to represent the company. There is an anterior question as to whether the company can be represented at all by a person other than a lawyer.

17.  The argument Ms. Khan makes is essentially that the company cannot afford legal representation. Its assets are frozen, and it does not qualify under the ad hoc legal aid scheme applicable to this type of case. She personally does not have sufficient assets or savings to make the payments requested by the solicitor.

18.  It is of some concern that Ms. Khan informed the court that her solicitor had made an application for the release of funds, which application was presumably unsuccessful. In fact, counsel for the Bureau confirmed that although section 6 of the Proceeds of Crime Act expressly permits an application to be made to court for the release of some of the assets which are frozen, including for the purpose of meeting legal expenses, no such application was made on behalf of this company in these proceedings.

19.  Unfortunately for Ms. Khan, lack of funds is a reason repeatedly rejected by the Superior Courts as a basis for the exercise of the discretion to allow company to be represented by a lay person. In fact, this was one of the reasons which was expressly rejected by Finlay Geoghegan J. in AIB v. Aqua Fresh Fish (above).

20.  I am satisfied that there would be no manifest injustice in applying the normal rule and requiring the respondent company to be represented by a lawyer. Ms Khan is not asking for an adjournment in order to get legal representation. It is an inherent part of the appeal that she wants to represent the company personally.   As I am satisfied that this is not an exceptional case, there is no need to determine all of the additional points raised by the Bureau in its submission.

21.  In conclusion I am satisfied that Ms. Khan should not be permitted to represent the company in this appeal. In principle this raises an issue as to whether the appeal filed by Ms. Khan on behalf of the company is validly before the court. Fortunately, it is unnecessary to decide this issue as there is now no one present in court to advance the appeal even if it were to be accepted that it was validly before the court.

22.  It also follows that there is no one in court to advance the motion to admit new evidence. As it happens, the members of the Court have looked at the new evidence and are satisfied that there is nothing in it that fundamentally changes the evidential picture that was before the High Court at the time the Orders were made.

23.  For all of these reasons the appeal will be dismissed and the motion to admit new evidence struck out. 

24.  In circumstances where the appeal was dismissed, the Bureau made an application for its costs which was allowed by the court against the company.

25.  Hyland J. and McDonald J. indicated in court their agreement with this ruling and with the orders which it is proposed to make.

 

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