If it walks like a duck, quacks like a duck…

The High Court has once again expressed its frustration with “quack lawyers” advising lay litigants to bring nonsensical, unmeritorious applications before the Court, which not only cause harm to those lay litigants in receipt of this so-called “legal advice”, when they are at their most vulnerable, but also cause systemic harm to the administration of justice, on a daily basis, in this jurisdiction.

Mr. Justice Michael Twomey, delivering his judgment in the case of Teresa Barrington and Sean Barrington -v- The Attorney General & Ors[1], drew an interesting parallel between the “pseudo legal advice” given by people who are not legal practitioners to lay litigants on a daily basis in the courts, and the prospect of “quack doctors” giving pseudo medical advice to patients in hospitals, when those patients are at their most vulnerable, which of course would not be tolerated.

A flavour of earlier decisions regarding this issue can be found here and here.

Factual Background

The lay litigant Plaintiffs in this case (“the Barringtons”) originally made an application to the High Court for an interlocutory injunction seeking to prevent the Sixth and Seventh Defendants (“MRCS” and “Mr. Garavan”, respectively) from taking possession of a business premises of Mr. Barrington in Ballybrit, Galway (the “Property”). By Order dated 18 June 2024, this application was refused by Mr. Justice Martin Nolan. Pursuant to that Order, Nolan J. also vacated an interim injunction which had been granted ex parte by Mr. Justice Sanfey on 11 June 2024, but strictly subject to a direction that the Barringtons file a supplemental affidavit setting out the facts relevant to any application for an injunction and containing an undertaking as to damages. An affidavit was provided by the Barringtons, however it did not comply with the Order of Sanfey J. and in the circumstances, Nolan J. vacated the interim injunction.

The Barringtons believed they did not get a “just” result and that they suffered an injustice before Nolan J. However, rather than appealing the decision of Nolan J. to the Court of Appeal in the ordinary course, the Barringtons pursued an unprecedented set aside application in respect of that interlocutory order, which was, in effect, a form of appeal to one High Court judge of another High Court judge’s interlocutory order. It was that application which came before Twomey J.

Decision

Refusing the application, Twomey J. pointed to a number of “fundamental errors” made by the Barringtons while being given assistance by an unqualified litigation adviser, which he said anyone “with even the most basic legal training would have advised them against making”[1]. These were as follows:

• Wrong parties for injunction application: the motion seeking the interlocutory injunction was served not only on Mr. Garavan and MRCS, but also on two State Defendants (the Attorney General and Táillte Eireann) and a financial institution, a receiver and an accountancy firm. This was despite the fact that the order being sought was as against Mr. Garavan and MRCS only and no relief was sought as against the five other parties in relation to the interlocutory application. This meant that even if the Barringtons were successful against Mr. Garavan and MRCS, they would almost certainly have had to pay the costs of the other five parties, who were required to attend court for an injunction that had nothing to do with them.
• Wrong parties for set aside application: this same error was made by the Barringtons in the context of the application to set aside the order of Nolan J. in circumstances where they served that motion on all seven Defendants. Not only did these two errors expose the Barringtons to thousands of legal costs, but they also forced the taxpayer to incur unnecessary legal costs by wrongly serving two motions on two State entities.

• No facts to support claim: the affidavits sworn by the Barringtons in support of their application contained no facts and/or evidence regarding their claim, but instead essentially solely comprised legal submissions, as they were full of references to caselaw and legislation. Moreover, the Barringtons inexplicably ignored Nolan J’s suggestion at the hearing of the interlocutory application that they might seek an adjournment to enable them to mend their hand and put some facts on affidavit.

• Ignored suggestion of Barniville P: when the set aside application initially came before the President of the High Court, the Barringtons inexplicably declined to take up his very helpful suggestion that they were within time, at that stage, to appeal Nolan J’s judgment which was pointed out to them as the normal or proper route to take when a litigant is unhappy with a decision, rather than the unprecedented application they were making.

• Nonsensical grounds: some of the grounds provided by the Barringtons in support of the set aside application were nonsensical, including where the solicitor for the Chief State Solicitor’s Office sat during the hearing.

• Standard legal language misunderstood: the Barringtons misunderstood standard legal language used in correspondence from Mr. Garavan’s solicitor in a letter seeking vacant possession of the Property, and confused such language with some sort of physical threat. This letter was relied upon by the Barringtons in support of their application.

• Standard court procedures misunderstood: the Barringtons misunderstood standard court procedures, including the fact that it is standard practice for judges to have read affidavits in advance of court hearings, such that it is not necessary for them to be read, in full or at all, in court during the hearing. The Barringtons complained that Nolan J. did not let Mrs. Barrington read her affidavit “into the record” during the hearing, however there was nothing unusual or unfair in this approach given the practice highlighted above.

Issues caused by unqualified advisers

Having regard to the above, Twomey J. summarised the fundamental reasons why the courts have expressed concern about the operations of unqualified litigation advisers under three main headings:

• They drain court resources, causing a delay to cases and hampering the court’s ability to deal with cases and deliver judgments in a timely manner for genuine legal disputes, as they become caught up dealing with unmeritorious arguments.
• Nonsensical claims inflict costs on innocent third party individuals and entities who find themselves unlucky enough to be involved in litigation with those who are “advised” by unqualified persons. Even if these innocent third parties secure costs orders in their favour, they have no guarantee of those costs being recoverable from the lay litigant.
• They inflict unnecessary costs on the taxpayer as the State is invariably a party to these proceedings in circumstances where, as in this case, a State body is sometimes accused of being part of a conspiracy against a lay litigant.

Twomey J. expressed his hope that this case would highlight for other lay litigants that they would be better off appearing in court without the assistance of unqualified litigation advisers. In those circumstances, perhaps they would be more likely to listen to any suggestions made to them by judges, which are in the litigants’ interests, rather than “advice” given to them by unqualified litigation advisers, who are ultimately the only party that do not appear to be out of pocket in such matters.

Criminal Offense

Twomey J. also pointed out, as an important backdrop to this issue, that it is a criminal offence for an unqualified person to give litigation advice. He referred to the decision of Mr. Justice Noonan in Start Mortgages Limited v Vincent Kavanagh and Madeleine (Ors Madeleine) Kavanagh[1] wherein he referred to the “disastrous consequences” which arise when a litigant seeks advice from an unqualified litigation adviser, but also the criminal offence which is committed. In particular, Noonan J. pointed to section 58 of the Solicitors Act, 1954 (as amended)(the “1954 Act”) which makes it a criminal offence for unqualified persons to draft documents for use in legal proceedings for reward. While Twomey J. noted that any time spent in the Four Courts or reading any of the numerous High Court and Court of Appeal judgments would reveal just how openly sections 58 and 55(1) (which prohibits an unqualified person acting as a solicitor) of the 1954 Act appear to be regularly contravened, he also commented that he was unaware of any person ever having been prosecuted for a breach of these provisions. The Court also noted that while in this case there was uncontroverted sworn evidence, uncontradicted submissions and an unchallenged statement from Nolan J. that the Barringtons were being assisted by a person with no legal qualifications, there was no claim of any offence being committed by this person contrary to sections 55 or 58 in this case.

McKenzie Friend

Twomey J. also drew attention to the important distinction between a true McKenzie Friend and an unqualified litigation adviser. In particular, he noted that “a true McKenzie Friend is usually a pre-existing friend, or a relation, of a lay litigant, who is in court solely to take notes or to hand up books or papers to the lay litigant”[1]. He went on to note that the true McKenzie Friend does not provide any litigation advice or advice on the drafting of documents for the proceedings, as this would be a criminal offence. Further information regarding the role of a true McKenzie Friend can be found here.

Comment

This is a very reasoned and detailed decision which again highlights an important issue in relation to which the courts have been expressing concern for many years. It begs the question as to why this pattern has continued “in plain sight” for so many years, when it is simply inconceivable that non-qualified, unregulated persons could practice so openly in other professional fields, such as medicine and pharmacy.

[1] Para 13

[1] [2017] IEHC 433

[1] Para 57

[1] Teresa Barrington and Sean Barrington v The Attorney General and Táillte Eireann and Promontoria (Oyster) DAC and David O’Connor and BDO and M.R.C.S Ltd and Paul Garvan [2025] IEHC 143