Damien English (Meath West, Fine Gael) | Oireachtas source

On behalf of the Minister for Justice and Equality, I thank the Senator for raising this matter. The Minister appreciates the Senator's interest in this subject and apologises for not being able to be here due to a commitment in Dublin Castle.

First, on behalf of the Minister, it is not accepted that the State is in breach of EU law in regard to the matter the Senator has raised. Council Directive No. 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights has been transposed into lrish law by the European Communities (Enforcement of Intellectual Property Rights) Regulations 2006, Sl 360 of 2006. Proceedings may be brought in the District Court for damages for breach of copyright where a claim falls within that court's threshold, which is a maximum of €15,000, and legal costs recoverable in the District Court are fixed by a scale in the District Court rules, which measures the costs in proportion to the value of the claim.

By contrast with remedies under EU law such as those falling within the European small claims procedure, the directive on enforcement of intellectual property rights does not mandate that remedies relating to intellectual property claims under the national law of a member state be the subject of a small claims procedure, nor does it mandate that corporations be entitled to represent themselves when bringing an intellectual property claim before the courts.

In so far as self-representation is concerned, this has been the subject of a detailed report in March 2016 of the Company Law Review Group, a statutory advisory expert body that advises the Minister for Business, Enterprise and Innovation on the review and development of company law in Ireland. According to the report, the review group remains to be convinced of the need for a radical overhaul of the law in this area. Although it remains sympathetic to the plight of the many companies that fell victim to the collapse of the property market and recognises that in the absence of available funding a number of companies have been unable to have their objections to summary judgment heard, the review group recognises that the courts retain the discretion to hear from non-lawyers where justice requires and are best placed to determine whether justice so requires in the case of companies which are party to court proceedings. In particular, the review group does not recommend that legislation should introduce a blanket permission to companies to be represented by their shareholders, officers or others, or a general entitlement to so act where they are in financial difficulty.

The review group observes that the general rule against pro se representation of companies in court is well-established in Ireland and almost universally followed in other jurisdictions. There is no suggestion that the Irish approach is significantly out of line with the approach in most other jurisdictions. While the strict application of the rule may on occasion lead to apparent or real hardship, such consequences can be considered the quid pro quofor the concession of separate legal personality. As Ó Dálaigh CJ stated in Battle v. Irish Art Promotion Centre Ltd. in 1968, 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 their legal right of audience which they would have as individuals, but the choice has been their own.

I hope that clarifies the matter for the Senator.