F.D.

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 12 November 2015
• Neutral Citation: [2015] IESC 83
• Court: Supreme Court
• Docket Number: [S.C. No. 313 of 2008],[Appeal No. 313/2008]
• Date: 12 November 2015

In the matter of F.D.

[2015] IESC 83

[Appeal No. 313/2008]

THE SUPREME COURT

Preliminary issue – Mental capacity – Wardship jurisdiction – Appellant seeking to be taken into wardship – Whether there exists an inherent jurisdiction to enable and regulate the protection of the property of a person who may lack mental capacity

Facts: On 23rd October, 2001, a plenary action in which FD was plaintiff was settled. The plenary action came before the High Court (Johnson J) for ruling. The order of 23rd October, 2001 recited that FD intimated to the Court that an application would be made to the President of the High Court to have FD taken into wardship. On 23rd October, 2001, Johnson J approved the settlement in the sum of IR£3m and directed that the said monies be paid into Court to the credit of the plenary action and the separate credit of FD. No application of the type envisaged in the order of 23rd October, 2001 was made to the President of the High Court after the making of that order. By the combined effect of orders of the High Court made by Finnegan P on 20th December, 2004 and 21st January, 2005 exercising his wards of court jurisdiction it was ordered that an issue was to be tried without pleadings before a judge of the High Court and a jury sitting in Dublin, namely whether FD was of sound mind and capable of managing his person and property. Those orders were appealed to the Supreme Court. On 4th July, 2007, the Supreme Court allowed the appeal and ordered that the case be remitted to the President of the High Court for the purposes of conducting a preliminary inquiry of the kind FD"s parents required. The matter was remitted to the President of the High Court, who made an order on 15th October, 2007 in the original plenary proceedings directing the trial of the following preliminary issue: Does the High Court have jurisdiction to establish a trust scheme or other form of arrangement as proposed in the draft deed of trust between FD"s family and the Court in advance of a determination by a judge or jury as to whether FD is of unsound mind and incapable of managing his person and property to protect the monies of FD where FD and FD"s family object to the exercise of wardship jurisdiction? The parties to the hearing of that issue in the High Court were FD, the General Solicitor for Minors and Wards of Court (the General Solicitor) and the Attorney General. The High Court answered the question posed in the issue in the negative. At the core of the submissions advanced before the Supreme Court by FD that the High Court does have jurisdiction to establish a trust scheme was the contention that the discretion in exercise of the wardship jurisdiction described by the Supreme Court in In re D [1987] IR 449 encompasses the inherent jurisdiction of the High Court otherwise recognised in Article 34.3.1 of the Constitution.

Held by Laffoy J that neither the nature of the High Court"s judicial function nor its constitutional role in the administration of justice, permitted the recognition of an inherent jurisdiction in the High Court to make provision for the protection of persons with mental incapacity outside the wardship process by, for example, sanctioning the establishment of a trust to protect the assets of a person believed to be incapable of managing his or her own property affairs. Laffoy J held that the existence of the Practice Directions could not be regarded as being reflective of the existence of an inherent jurisdiction in the High Court to sanction the establishment of trusts in relation to the property of individuals believed to lack mental capacity outside the wardship process as currently regulated by legislation. Laffoy J concluded that it was not appropriate for the Court to find that the sixteen precedents identified by the General Solicitor were reflective of the existence of the inherent jurisdiction advocated on behalf of FD in determining the question raised as a preliminary issue. The jurisdiction conferred on the Court by s. 117 of the Succession Act 1965, the making of proper provision for a child out of the estate of a testator in circumstances where the testator has failed in his moral duty to make such a provision in accordance with his means, in Laffoy J"s view, was not at all analogous to the jurisdiction conferred by legislation on the High Court in relation to the administration and proper management of the person and property of an individual who, by reason of mental incapacity, is incapable of managing his or her own affairs.

Laffoy J held that there would be an order dismissing the appeal, the consequence being that the order of the High Court dated 29th July, 2008 in which the preliminary issue was outlined and answered in the negative stands.

Appeal dismissed.

Judgment of Ms. Justice Laffoy delivered on 12th day of November, 2015

The genesis of and the issue addressed in the High Court order appealed against

1 The order of the High Court the subject of this appeal was made on 29th July, 2008 by Sheehan J. (the trial judge) in proceedings entitled In the matter of F.D. (Record No. 2008/118MCA — WOC 1679). That order recites that the issue before the High Court was the subject of a direction of the President of the High Court made on 4th December, 2007 that a preliminary issue set out in the order be addressed by the High Court in accordance with the decision of the Supreme Court of 4th July, 2007. The preliminary issue directed to be addressed was as follows:

'Does the High Court have jurisdiction (inherent or otherwise) not limited to and without exercising the jurisdiction provided for under Section 9 of the Courts (Supplemental Provisions) Act 1961 [the Act of 1961] or the Lunacy Regulation (Ireland) Act 1871 to establish a trust scheme or other form of arrangement as proposed in the draft deed of trust between [F.D.'s] family and the Court in advance of a determination by a judge or jury as to whether [F.D.] is of unsound mind and incapable of managing his person and property to protect the monies of [F.D.] where [F.D.] and [F.D.'s] family object to the exercise of wardship jurisdiction.'

The order, which was made pursuant to a judgment delivered by the trial judge on 29th July, 2008, noted that the Court had concluded that the High Court had no jurisdiction inherent or otherwise to create the said trust scheme and, accordingly, the Court answered the issue in the negative.

2 In summarising the circumstances in which the Supreme Court ordered that issue to be tried, the starting point is the settlement on 23rd October, 2001 of a plenary action in which F.D. was plaintiff (Record No. 1997/No. 9068P). When those plenary proceedings commenced, F.D. was a minor and the proceedings were brought by him as a minor suing by his mother and next friend, B.D. However, by 23rd October, 2001 F.D. had attained his majority. On that day the plenary action came before the High Court (Johnson J.) for ruling, having been at hearing before another High Court judge for four days. The order of 23rd October, 2001 recited that counsel for F.D. intimated to the Court that an application would be made in due course to the President of the High Court. It is clear that what counsel intimated was that there would be an application made to the President of the High Court to have F.D. taken into wardship. On 23rd October, 2001, Johnson J. approved the settlement in the sum of IR£3m and directed that the said monies be paid into Court to the credit of the plenary action and the separate credit of F.D.

3 In fact, no application of the type envisaged in the order of 23rd October, 2001 was made to the President of the High Court after the making of that order, although there was interaction between the solicitors for F.D. and the High Court and the registrar of wards of court (the Registrar). In any event, ultimately, by the combined effect of orders of the High Court made by Finnegan P. on 20th December, 2004 and 21st January, 2005 exercising his wards of court jurisdiction it was ordered that an issue was to be tried without pleadings before a judge of the High Court and a jury sitting in Dublin, namely —

'whether or not the Respondent [F.D.] is of unsound mind and incapable of managing his person and property.'

Those orders were appealed to the Supreme Court.

4 However, before the appeal was heard F.D. and his parents, F.D. Senior and B.D., initiated plenary proceedings against the Registrar, Ireland and the Attorney General in the High Court (Record No. 2004/2188P). An application for an interlocutory injunction was brought in those proceedings seeking, in broad terms, injunctions to restrain the continuance of the wardship inquiry pending the determination of those plenary proceedings. The application was refused. The judgment of the High Court (Kelly J.) is reported at [2004] 3 I.R. 95. Those plenary proceedings have not been advanced by the plaintiffs therein to conclusion and are still pending. They are mentioned because the judgment of Kelly J. on the interlocutory application is helpful in giving a fuller picture of what transpired after the making of the order dated 23rd October, 2001 approving the settlement than is outlined above.

5 The appeal against the orders of 20th December, 2004 and 21st January, 2005 to the Supreme Court (Record No. 2005/37) was prosecuted to finality. Judgment was given in the Supreme Court on 4th July, 2007 by Geoghegan J., with whom the other judges (Fennelly and Kearns JJ) agreed. That judgment is reported at [2008] 1 ILRM 19. The position of the parents of F.D., F.D. Senior and B.D., on that appeal was summarised by Geoghegan J. in his judgment (at p. 26) as follows:

'What the parents want is a determination by the High Court in advance of any consideration of the wardship issue as to whether an...