T.H. A Ward of Court

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 01 October 2020
• Neutral Citation: [2020] IEHC 487
• Docket Number: [WOC 9911]
• Court: High Court
• Date: 01 October 2020

IN THE MATTER OF TH

RESPONDENT / A WARD OF COURT

[2020] IEHC 487

Niamh Hyland J.

[WOC 9911]

THE HIGH COURT

WARDS OF COURT

Costs – Wardship – Legal representation – Solicitors seeking the costs of representing a ward of court – Whether the HSE ought to pay the costs of the ward’s legal representation

Facts: Michael Ward Solicitors applied to the High Court for the costs of representing a ward of court, in the wardship proceedings that ultimately resulted in him being made a ward of court by Order of the President on 2 July 2019. His solicitors sought costs against the HSE even though he ultimately did not oppose the petition to take him into wardship after his solicitors obtained two medical reports on his behalf, both of which stated that he lacked the necessary capacity. The application for costs was advanced by his counsel on the basis that the Constitution and the ECHR require that the intended ward’s voice be heard and that therefore the HSE ought to pay the costs of his legal representation.

Held by Hyland J that the question of the entitlement to be represented and the question as to who pays for that representation are two quite different issues. She fully agreed that it was appropriate in this case that he be represented and that his solicitors be entitled to an order for costs when measured. However, she held that simply because the HSE presented the petition under s. 12 of the Lunacy Regulation (Ireland) Act 1871 (i.e. at the direction of the President), that did not mean it should inevitably pay his legal costs. In the circumstances of this case, Hyland J decided that the costs should be borne by the estate of the ward i.e. out of his own resources, and in so doing she placed particular emphasis on the following factors: (a) the court has explicit jurisdiction to make orders directing that costs be paid out of the estate of a ward of court; (b) the costs in question were incurred representing his interests and on his instruction; (c) the HSE cannot be viewed as an “unsuccessful” party within the meaning of s. 169 of the Legal Services Regulation Act 2015 for the purposes of costs; (d) his solicitors did not seek to agree with the HSE in advance that the costs of his representation would be borne by the HSE; (e) his estate had sufficient means to discharge the legal costs when measured; (f) the right of a ward to have his or her voice heard can be vindicated just as effectively by an intended ward bearing the costs of legal representation from their own funds, where appropriate, as by a third party bearing those costs.

Hyland J ordered that the measured costs of the legal representation provided by solicitors and counsel for the ward in respect of the petition for an inquiry be borne out of the estate of the ward.

Decision on costs.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 1 October 2020

Summary of Decision

1 This is an application by Michael Ward Solicitors for the costs of representing Mr H, ward of court, in the wardship proceedings that ultimately resulted in Mr H being made a ward of court by Order of the President on 2 July 2019. Mr H's solicitors seek costs against the HSE even though Mr H ultimately did not oppose the petition to take him into wardship after his solicitors obtained two medical reports on his behalf, both of which stated that he lacked the necessary capacity.

2 The application for costs was advanced by counsel for Mr H on the basis that the Constitution and the ECHR require that the intended ward's voice be heard and that therefore the HSE ought to pay the costs of his legal representation. The question of the entitlement to be represented and the question as to who pays for that representation are two quite different issues. I fully agree that it was appropriate in this case that Mr H be represented and that his solicitors be entitled to an order for costs when measured. However, simply because the HSE presented the petition under s. 12 of the Lunacy Regulation (Ireland) Act 1871 (the “1871 Act”) (i.e. at the direction of the President), that does not mean it should inevitably pay Mr H's legal costs.

3 In the circumstances of this case, I have decided that the costs should be borne by the estate of the ward i.e. out of Mr H's own resources, and in so doing I place particular emphasis on the following factors:

(a) the court has explicit jurisdiction to make orders directing that costs be paid out of the estate of a ward of court;

(b) the costs in question were incurred representing Mr H's interests and on his instruction;

(c) the HSE cannot be viewed as an “unsuccessful” party within the meaning of s. 169 of the Legal Services Regulation Act 2015 (the “LSRA 2015”) for the purposes of costs;

(d) the solicitors for Mr H did not seek to agree with the HSE in advance that the costs of his representation would be borne by the HSE;

(e) the estate of Mr H in this case has sufficient means to discharge the legal costs when measured;

(f) the right of a ward to have his or her voice heard can be vindicated just as effectively by an intended ward bearing the costs of legal representation from their own funds, where appropriate, as by a third party bearing those costs.

4 Accordingly, I am ordering that the measured costs of the legal representation provided by solicitors and counsel for Mr H in respect of the petition for an inquiry be borne out of the estate of the ward.

Background

5 Mr H was born on 4 July 1937. He is now 83 years of age. He owns a property close to Athy, Co. Kildare which has a value of approximately €220,000. He currently resides at Ashley Lodge Nursing Home, Co. Kildare.

6 Mr H was admitted to Naas General Hospital on the 6 October 218. At that time, he had a diagnosis of dementia. By the 19 December 2018 Mr H was medically fit for discharge. The staff at Naas General Hospital were concerned that Mr H could not look after himself because of his dementia and that the system of support in his local community was no longer sufficient to manage his care needs.

7 The HSE's solicitors wrote to the Office of the Wards of Court on 19 December 2018 outlining its concerns in respect of Mr H and asking the President of the High Court to consider requesting a Medical Visitor to attend on Mr H to commence 12th section proceedings on foot of the information furnished. The President directed Dr Justin Brophy to act as ‘Medical Visitor’ pursuant to s.11 of the 1871 Act and Dr Brophy conducted a capacity assessment on Mr H, concluding that Mr H was of unsound mind and incapable of managing his affairs.

8 By Order dated 20 February 2019 the President of the High Court directed that the matter proceed by way of Petition for an inquiry as to the soundness or unsoundness of mind of Mr H and that the HSE serve the petition and have carriage of the report and proceedings. Ms Dillon, solicitor for the HSE served an Originating Notice document on Mr H on 6 March 2019. She indicates in her affidavit of service that she attempted to explain the procedure to Mr H. This notice notified Mr H the process involved in objecting to an inquiry being held or in demanding that such inquiry take place before a Jury.

9 By notice of objection dated 13 March 2019 Mr H signed the objection in the presence of Ms Mary Ward, solicitor. It appears that Ward Solicitors were contacted by SAGE, a patient advocacy group. No application was made to the HSE in advance of legal services being provided to Mr H seeking support in respect of the legal costs.

10 Ms Ward requested Dr David Robinson, Consultant Physician to examine Mr H on 9 April 2019 for the purposes of assessing his capacity. Dr Robinson concluded he did not have the capacity to make decisions and lacked insight into his care needs. Dr Michael O'Cuill, on the request of Ms Ward, examined Mr H on 11 June 2019. Dr O'Cuill agreed that Mr H was a person of unsound mind and was unable to manage his person or affairs due to vascular dementia. In both reports, the very strong desire of Mr H to leave the nursing home and to go home were identified, as well as his belief that he could manage at home.

11 On 2 July 2019 the matter was listed before the President of the High Court for 12th Section Declaration. The reports of Dr Robinson and Dr O'Cuill were filed in Court on the 25 June 2019. It was confirmed at the hearing that there was no evidence to contest the proceedings and the President admitted Mr H to Wardship. The General Solicitor was appointed Committee of the Person and of the Estate of the Ward.

12 An application for costs was made on behalf of Ms Ward, solicitor and Senior and Junior Counsel. The President directed that this issue be ‘stood over’ and that a statement of the ward's assets be obtained. The application for costs has now been re-entered and Ms Ward and Senior and Junior counsel seek their costs as against the HSE.

Submissions of counsel for Mr H

13 Extensive submissions were made in respect of the right of a person the subject of a wardship petition to be heard and legally represented, arising, inter alia, from the decision in AC v. Hickey & Cork University Hospital & Ors [2019] IESC 73 and from the case law of the ECtHR. There was little disagreement with those principles and I summarise the core aspects of same below.

14 It was further submitted that the party responsible for bearing the legal costs of the ward was necessarily the HSE. Counsel for Mr H pointed to the fact that in practice the HSE provides a guardian ad litem, and if necessary, legal assistance, where it seeks a detention order against persons and seeks to argue that this must of necessity oblige the HSE to provide similar assistance in cases not involving detention.

15 Counsel for Mr H opposed the submission of the HSE that the legal costs should come out of Mr H's estate. She argued that, if respondents to wardship inquiries were required to fund their own legal costs,...