T.H. (A Ward of Court)
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 17 February 2023 |
| Neutral Citation | [2023] IECA 35 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2020/242 |
In the Matter of/
[2023] IECA 35
Barniville P.
Murray J.
Whelan J.
Appeal Number: 2020/242
THE COURT OF APPEAL
JUDGMENT of Ms. Justice Máire Whelan delivered on the 17th day of February 2023
. This judgment is directed towards the issue of the proper allocation of costs in this matter, the substantive judgment in which was delivered on the 14 th October, 2022, [2022] IECA 228. A legal team comprising senior counsel, junior counsel and a solicitor (the legal practitioners) appeared in the appeal for the purposes of asserting their entitlement to pursue the appeal in the name of a purported respondent T.H., a deceased Ward of Court. Section 2 of the Legal Services Regulation Act, 2015 (the “2015 Act”) defines the term “legal practitioner” as “a person who is a practising solicitor or a practising barrister”.
. Briefly put, the essential facts are as follows. T.H., born in 1937, was a bachelor and had no immediate family. Prior to his hospitalisation T.H. resided alone in a modest rural dwelling house which he owned. Whilst a patient in Naas General Hospital (the “Hospital”) in March 2019, through the intercession of a patients' advocacy group, he was put in touch with the solicitor. The immediate concern of T.H. was to secure assistance to lodge an objection to and to oppose an application for his proposed Wardship which the HSE had instigated. The nature and extent of the role (if any) of the advocacy group in question in regard to the conduct of the proceedings concerning the Wardship of T.H. is unclear. They were neither a party nor a notice party to the wardship application. That aspect will be returned to later. It appears that the primary focus and interest of counsel in the case was, on what they viewed, as a “test case” to determine the circumstances when the HSE might be liable to bear the costs of the proposed Wardship. There is no evidence before this court that T.H. was ever informed of or assented to that approach.
. From the Hospital's perspective, the evidence suggests that, as of March 2019, its assessment was that the appropriate care of T.H. required either that he reside at home under a suitable care arrangement following discharge from the Hospital or that he would move to suitable residential nursing home care. The HSE's assessment was that he needed to be in age appropriate accommodation and that his stay in a hospital setting on a continuing basis was inappropriate and not warranted.
. In the context of opposing the application to have T.H. taken into Wardship, at the instigation of the legal practitioners, he was examined by two independent medical experts proficient in the field of gerontology, in addition to the Medical Visitor appointed by the President of the High Court to carry out a medical examination as to his soundness or unsoundness of mind and his capacity or otherwise to manage his affairs. On the 2 nd July, 2019, having duly considered the totality of the medical evidence, the President of the High Court made an order taking T.H. into Wardship. It appears that the making of that order was ultimately unopposed. At the conclusion of the matter Senior Counsel for T.H. sought an order that the HSE should discharge the legal fees and outlay in respect of T. H. incurred in the application. The President directed that the issue of costs be adjourned to a later date and be determined after a Statement of Facts was filed.
. It bears emphasis that this is a case in which the correctness of the President's order taking T.H. into Wardship is not in contest. It would appear that his counsel did not resist the making of the order by the President of the High Court. No attempt was made to appeal the said order and the purported notice of appeal does not encompass any challenge to the order taking him into Wardship.
. It was thus that the application of the legal practitioners' team for T.H. for costs came to be dealt with separately and subsequently to the Order taking T.H. into wardship. The costs application was ultimately heard by Hyland J. and judgment was delivered in October 2020. It would appear that this occurred, at least in part, because T.H.'s legal practitioners had given no prior indication to the HSE of their intention to seek an order that it should be liable to discharge T.H.'s legal fees and outlay, which is not an order conventionally sought in wardship proceedings.
. At the adjourned costs hearing, counsel for T.H. sought to frame an argument that the costs of T.H. should be borne by the HSE. That proposition was characterised thus by Hyland J. in her judgment delivered on the 1 st October, 2020, [2020] IEHC 487;
“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.”
. In the judgment Hyland J. expressed the view that the entitlement of a respondent in a wardship application to have his 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.” She rejected the arguments that the HSE was liable to bear the said costs. She reasoned, inter alia, that the HSE could not be viewed as an “ unsuccessful” party within the meaning of s. 169 of the 2015 Act for the purposes of costs and, having satisfied herself that T.H. had sufficient means to discharge same, ordered that the measured costs of the legal representation provided by the firm of solicitors and by both senior and junior counsel in respect of the petition for an inquiry be borne out of his estate.
. After the matter had finally concluded in the High Court, on the 23 rd November, 2020 a notice of appeal was filed in his name by the legal practitioners. There is no evidence that T.H. had any awareness that such a notice of appeal had been filed. Neither he nor his Committee in Wardship was communicated with seeking instructions or informing them of this proposed course of action. Same occurred without any notice or any application for leave to the President of the High Court or to the General Solicitor for Wards of Court who had been appointed the ward's Committee by the Order of 2 nd July, 2019.
. Subsequently the Ward died on the 2 nd April, 2021. The legal practitioners asserted an entitlement to continue to pursue the appeal from the orders of Hyland J. For reasons explained in its judgment and on foot of an application brought by the HSE to determine a preliminary issue as to the entitlement of the legal practitioners to institute or pursue the purported appeal, this court determined that they were not entitled to institute, maintain or pursue the within appeal subsequent to the conclusion of the Wardship proceedings in the High Court following the above-referred to judgment and orders of Hyland J. made in 2020.
. In the judgment of this court referred to above a preliminary view was expressed in respect of costs as follows:
“77. Insofar as the solicitors may contend that the Ward or his estate are liable for any costs incurred by them on or after the 2 July 2019 in connection with any aspect of this appeal, my preliminary view is that such a claim is not maintainable for all the reasons stated above since, at the point of being taken into Wardship, the property of the Ward became subject to the control of the High Court. The Ward was never the client of the solicitors/legal practitioners within the meaning of s.2 of the Solicitors (Amendment) Act, 1994 and neither was his estate. (emphasis added)
78. My preliminary view is that the HSE and the General Solicitor should make written submissions in connection with the issue of the costs to date in this matter within 21 days of the date of this judgment. Any party or individual concerned shall be entitled to furnish legal submissions in response thereto within a further 21 days.”
. The respective position of the parties including notice parties in regard to the issue of the costs are, briefly, as follows:
(i) The General Solicitor for Minors and Wards of Court.
In submissions dated 1 st November, 2022 it is recalled that the General Solicitor had appeared before this court to offer assistance if required. “ The usual practice of the General Solicitor when she appears in a matter to assist the court is to bear her own costs.” No order for costs was sought by the General Solicitor.
(ii) Health Service Executive
The HSE seeks an order for its costs of the within appeal against the legal practitioners on the basis that same were incurred by the HSE and were “ all fruitless” or wasted costs. It was emphasised that the HSE had objected to the legal practitioners' locus standi to maintain the within appeal in correspondence and also in its notice of opposition to the appeal. As such, it contended that it was entitled to recover its costs as the “ successful party” to the appeal. In measured submissions, it emphasised that it was not seeking an order for costs against the estate...
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