T.H. (A Ward of Court)

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 14 October 2022
• Neutral Citation: [2022] IECA 228
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2020/242

In the Matter of T.H. (A Ward of Court)

Purported Respondent/Appellant

[2022] IECA 228

Barniville P.

Murray J.

Whelan J.

Court of Appeal Record Number: 2020/242

THE COURT OF APPEAL

Wardship – Preliminary issue – Locus standi – Legal practitioners seeking to maintain and prosecute an appeal – Whether the appeal should be struck out

Facts: The purported respondent/appellant (the Ward) retained solicitors for the purposes of opposing his proposed wardship. The President of the High Court declared the Ward to be a person of unsound mind and incapable of managing his person and property. It was contended by the legal practitioners that the Health Service Executive (HSE) was liable for the costs of the Ward’s legal team in respect of the wardship application. Hyland J held that same be borne out of his estate which had come to vest in his Committee. A notice of appeal was lodged in the Court of Appeal Office on the 23 November 2020. The orders sought if the appeal was successful were as follows: (a) an order setting aside the order of Hyland J perfected 28 October 2020; (b) an order setting aside the order of the High Court that the costs of the wardship proceedings should be discharged out of the Ward’s estate; (c) an order setting aside the order of the High Court that the costs of the hearing on costs should be discharged out of the Ward’s estate; (d) an order awarding the costs of the wardship proceedings together with the motion re-entering the proceedings in the High Court and the costs of the hearing on costs and the costs of the appeal to the respondent/appellant be paid by the HSE; and (e) such further or other relief as may be necessary or appropriate. This judgment was confined to a preliminary issue as to the entitlement in law of legal practitioners, including a firm of solicitors, to maintain and prosecute the appeal, notwithstanding that the individual who originally retained the solicitors subsequently was admitted into Wardship and is deceased.

Held by Whelan J that the purported pursuance of the appeal from and after the 13 April 2021, upon which date, at the latest, the solicitor was actually aware of the death of the Ward was erroneous and occurred where the legal practitioners had no client, lacked locus standi to proceed, knew that the executrix opposed the bringing of the appeal and risked exposing the estate to orders for costs. Whelan J held that the stance maintained by the legal practitioners involving an asserted entitlement to continue to prosecute the appeal was contrary to all norms and no valid basis or authority was identified for same. Whelan J held that the legal practitioners had not shown that they had any client at any time or received instructions from any party who had locus standi to direct the filing, prosecution or pursuance of the purported appeal either prior or subsequent to the death of the person named in the title of the appeal. Whelan J held that there was no acquiescence by the Committee of the Ward to the filing or prosecution of the purported appeal.

Whelan J held that the appeal falls to be struck out as having been improperly brought without instruction or lawful authority.

Appeal struck out.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 14th day of October 2022

Introduction

1 . This judgment is confined to a preliminary – and net — issue as to the entitlement in law of legal practitioners, including a firm of solicitors, to maintain and prosecute the within appeal, notwithstanding that the individual who originally retained the solicitors, T.H., (a) subsequently was admitted into Wardship and (b) is now deceased.

Context

2 . The Legal Services Regulation Act, 2015, as amended, in s.2 defines a “legal practitioner” thus: “subject to subsection (2), means a person who is a practising solicitor or a practising barrister and a reference to a solicitor includes a reference to a firm of solicitors.” Noonan J. in Ward v Tower Trade Finance (Ireland) Limited [2022] IECA 70 emphasised the ambit of the definition. The solicitor is furthermore an officer of the court and as such is governed by the provisions of the Solicitors Acts, 1954–2011. A team of three legal practitioners appeared at the hearing of the preliminary issue purporting to act on behalf of the above-named appellant who was made a Ward of Court on the 2 July 2019, comprising a solicitor and senior and junior counsel.

Background

3 . T.H. was born in July 1937. He died on the 10 April 2021, aged 83 years and 9 months approximately. The relevant history includes that he was admitted to Naas General Hospital on or about the 6 October 2018. Thereafter, he came to reside at a nursing home in Kildare – initially for respite care from mid-December 2018 to mid-January 2019 and subsequently, from the 27 May 2019 to the 8 August 2019. He resided at a different nursing home in Co. Kildare from the 8 August 2019 until the date of his death.

4 . His diagnosis after initial hospitalisation in October 2018 was of significant advanced vascular dementia. At an unspecified date, he fell whilst residing in one nursing home, sustaining a fracture of two vertebrae. The certified causes of death were stated to include “pneumonia, vascular dementia, atrial fibrillation.”

5 . Invoking the 12th section of the Lunacy Regulation (Ireland) Act, 1871, the HSE, acting through its solicitors, Messrs. J.D. Scanlon & Co., wrote to the Office of Wards of Court on the 19 December 2018 setting forth concerns in respect of T.H. and appending medical notes prepared by two consultant physicians. The letter on behalf of the HSE instigating the Wardship process indicated that T.H. had no known next of kin, that he required long-term residential care and concluded “[i]n all the circumstances, we would be very grateful if the President of the High Court would give consideration to requesting a Medical Visitor to attend on [T.H.] in order to commence 12th Section proceedings on foot of the information furnished.”

6 . It can be observed in passing that the routine procedure for admission to Wardship under the Lunacy Regulation (Ireland) Act, 1871 was s. 15. The 12th section offered an alternative process which could be activated, inter alia, when a specific case was brought to the attention of the Registrar of Wards of Court who, pursuant to the statutory process, could then acquire the statutory entitlement to commence an enquiry and requisition one of the medical visitors to prepare a report on the capacity of the individual in question. In practice, that report was treated as a petition for enquiry and the language of the 12th section clearly intended it to be so: “… any report to be made under the provisions in the proceedings section contained shall stand and be proceeded upon as a petition presented in the matter of the alleged lunacy…”

The initial retainer of the solicitors by T.H.

7 . The circumstances whereby T.H. retained the solicitors in the first instance appear to have been for the purposes of opposing his proposed Wardship. He appears to have given instructions to a particular solicitor in the said firm to object to the proposed Wardship. A Notice of Objection was filed on the 13 March 2019, objecting to the medical visitor's report being directed to stand and be proceeded on as an enquiry. The solicitors represented his interest in court in connection with the proposed Wardship and in that regard retained counsel.

Compliance with s.68 in April 2019

8 . S.68(1) of the Solicitors (Amendment) Act, 1994 stipulated:-

“(1) On the taking of instructions to provide legal services to a client, or as soon as is practicable thereafter, a solicitor shall provide the client with particulars in writing of –

• (a) the actual charges, or

• (b) where the provision of particulars of the actual charges is not in the circumstances possible or practicable, and estimate (as near as may be) of the charges, or

• (c) where the provision of particulars of the actual charges or the estimate of such charges is not in the circumstances possible or practicable, the basis on which the charges are to be made,

by that solicitor or his firm for the provision of such legal services and, where those legal services involve contentious business, with particulars in writing of the circumstances in which the client may be required to pay costs to any other party or parties and the circumstances, if any, in which the client's liability to meet the charges which will be made by the solicitor of that client for those services will not be fully discharged by the amount, if any, of the costs recovered in the contentious business from any other party or parties (or any insurers of such party or parties).”

9 . The solicitor appears to have furnished the requisite s.68 letter relevant to the Wardship application in early April 2019 and same was duly signed by T.H. It was not suggested that this s.68 letter did or could extend to the valid authorisation of the legal practitioners to pursue an appeal regarding costs. The application for the admittance of T.H. into Wardship was heard by the President of the High Court. Medical evidence by way of affidavit was furnished on behalf of T.H., including affidavits from a consultant in psychiatry and a consultant physician in geriatric medicine. The Wardship hearing took place on the 2 July 2019. It does not appear that the legal representatives of T.H. formally opposed the Wardship beyond having placed the aforesaid affidavits before the court. No demand for an inquiry before a jury was advanced on his behalf. The learned President of the High Court, in light of the evidence before him, declared T.H. to be a person of unsound mind and incapable of managing his person and property.

10 . The order taking T.H. into Wardship was formally drawn up on or about the 5 July 2019. It expressly notes that there had not been a...