Scottish Human Rights Law Group

Director representing a company in legal proceedings – Right to a fair trial

The Secretary of State brought a petition in the Court of Session to wind up UK Bankruptcy Limited (“UKBL”) under section 142A of the Insolvency Act 1986 on the ground of expediency in the public interest. A director of UKBL sought to represent it in opposing the petition on the basis that, among other things, a company had a right under Article 6 of ECHR to be represented in court by a director.

Lord Hodge held that, even though a company has a right to a fair trial under Article 6, that right in relation to representation does not mean that a company should be treated in precisely the same way as a party litigant. The requirement for legal representation in court is one of the disadvantages of corporate personality and as such is not in general incompatible with a company’s right to a fair trial under Article 6. In exceptional circumstances, however, the court will have to take steps to allow a company to be represented in court by someone who is not a lawyer with rights of audience in order to ensure a fair hearing. Lord Hodge reported the issue of such exceptional circumstances to the Inner House for an opinion.

Full judgement here.