Supreme Court: Firms of solicitors can lawfully apply for the issue of a summons

About this case:

• Citation:
  [2025] IESC 19
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Peter Charleton

Delivering his judgment for the Supreme Court, Mr Justice Peter Charleton determined: “A firm of solicitors may apply for the issue of a summons since, whether a partnership, a limited liability partnership, a sole-practitioner or whether named as the individual doing the final task, either in person or electronically, or by reference to the title of a firm, a person in statute can be an individual, a corporation or an unincorporated association, and the action is that of a person acting on behalf of an authorised prosecutor.”

Background

The respondent was summonsed on 8 June 2018 to appear before Donegal District Court on charges relating to breaches of planning legislation.

At the hearing, the point was raised that the summons was issued by a firm of solicitors and that such an unincorporated partnership was not a natural person and therefore, could not apply to issue a summons.

Judge Sandra Murphy stated a case to the High Court as to whether s.1 of the Courts (No.3) Act 1986 (as amended) authorises the issue of a summons on the application of “V.P. McMullin”, being a firm of solicitors and an unincorporated body of persons.

The High Court

The respondent contended inter alia that prior to its amendment in 2004, a firm of solicitors could apply for a summons on behalf of a corporation or other entity entitled to prosecute, but that s.1(6) of the 1986 Act as now enacted requires the summons to “specify the name of the person who applied for the summons” and as such, only natural persons and not unincorporated partnerships could undertake this “physical action”.

The High Court answered the question in the negative, finding that the reference to “specify” is a requirement to “identify clearly and precisely the name of the person” who applied for the issue of the summons together with the name of the appropriate District Court clerk, a natural person.

Mr Justice Conleth Bradley considered other elements of the 1986 Act which he believed to indicate that “person” referred to natural persons, including the requirement that the summons shall state “the name” of the accused as well as the address at which “he or she” ordinarily resides and opined that when taken with the observations in Friends of the Irish Environment CLG v The Legal Aid Board & Ors [2023] IECA 19 in relation to the use of pronouns in legislation, s.1 of the 1986 Act requires “a requirement for legal personality in the sense of a natural person rather than an unincorporated body of persons”.

The appellant was subsequently granted leave to bring a leapfrog appeal to the Supreme Court.

The Supreme Court

At the outset of his judgment, Mr Justice Charleton noted that the “wide-ranging and inventive suggestion makes part of the general rules for construction of statutes, enacted in the Interpretation Act 2005, germane”.

The judge referred to s.18 of the 2005 Act, which states that the word “person” in enactments shall be read as importing a body corporate (whether corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of “person” shall be read accordingly.

The court also set out s.4(1) and s.4(2) of the 2005 Act, which state that the provisions of the 2005 Act apply to an enactment except in so far as the contrary intention appears in the 2005 Act, in the enactment itself or, where relevant, in the Act under which the enactment is made, and that the provisions of the 2005 Act which relate to other Acts also apply to the 2005 Act unless the contrary intention appears in the 2005 Act.

Having regard inter alia to Kelly v Hamill [1997] IEHC 7, Mr Justice Charleton considered that in circumstances where there is an entitlement to apply for a summons either by or on behalf of a person authorised to prosecute proceedings, the question to be asked “is not that proposed on behalf of Conor Quinn as to who is the individual, contended to be capable only of being a natural person, who applies for a summons, but rather on behalf of whom is the summons applied for”.

The judge highlighted that as per Kelly, VP McMullin is not authorised to prosecute criminal offences in their own right but merely initiated an accusation through summons with the lawful prosecutor being Donegal County Council.

The court also considered the law of agency, noting: “Always, a firm of solicitors acts as agent for the principal entitled to prosecute. Whether they are named or not, that name, whether of the firm or of a person within the firm, is outside the relationship of prosecutor and defendant that the summons establishes.”

Mr Justice Charleton continued: “It is irrelevant whether the firm is a limited liability partnership, or an individual sole-practitioner or, most commonly, a partnership since the application is on behalf of the principal, namely the party entitled to prosecute… In this context, the agent, the solicitor or solicitors’ firm, is not acting as prosecutor but on behalf of the party entitled in that regard.”

The court further emphasised that there is no reason why “person” cannot mean the “person” on whose behalf the summons is sought, nor why the person applying has to be identified as a “living human being”, finding that s.18(c) of the 2005 Act cannot be read so that “person” includes exclusively individuals, “but rather references both natural, incorporated and unincorporated bodies throughout”.

Mr Justice Charleton also had regard to inter alia the history of the 1986 Act and considered that the issuing of a summons was previously a judicial act as per State (Clarke) v Roche [1986] IR 619, but that this process had, in the interests of efficiency, been converted by the 1986 Act to an administrative act capable of being lawfully delegated and that a firm merely initiates the complaint process on behalf of the prosecutor.

In his judgment, Mr Justice Brian Murray emphasised that there “was never any question but that an application for the issue of a summons pursuant to that provision could be made by a body corporate or an unincorporated association”.

The judge highlighted that firstly, nowhere does the amendment to the 1986 Act state that henceforth a summons could not be issued on behalf of an unincorporated association, secondly, that such a change would contravene the presumption that the Oireachtas does not introduce significant changes to the law in such an “opaque and roundabout way” and thirdly, that the consequence of s.18(c) and s.4 of the 2005 Act is that the starting point for any consideration of the issue is that “person” includes, not excludes, unincorporated associations.

In the absence of a “clear theory” as to why the Oireachtas would desire to make this change, Mr Justice Murray agreed that the District Court’s question should be answered in the affirmative.

Conclusion

Accordingly, the Supreme Court allowed the appeal and determined that the question on the case stated by the District Court was to be answered in the affirmative.

Donegal County Council v. Conor Quinn [2025] IESC 19