The Irish Court of Appeal has held that it would not make a wasted costs order against counsel and the solicitor who pursued anappeal on behalf of a ward of court without the client’s instructions. The ward had not been informed that his appeal was being treated as a “test case” by the lawyers and died before the appeal came on for hearing.
The Court noted that it was “regrettable” that steps were not taken to ensure that the vulnerable ward, an older man without family, was aware that his opposition to wardship “was being co-opted into a test case on an aspect of costs” which could deplete his estate. However, the Court did not deem the barrister’s actions as misbehaviour which would merit a costs order against the barrister personally.
Previously, the Court of Appeal had dismissed an appeal brought by the lawyers of the same ward of court, known as TH, on the basis that the lawyers did not have any lawful authority to pursue the appeal. Link here to the judgment in that decision.
In summary, the Court of Appeal had dismissed the appeal which was brought by the solicitor purporting to act on behalf of the ward of court. The Court held that the legal practitioners did not have any lawful authority to pursue the appeal after the man had been brought into wardship, which related to the costs of the High Court proceedings. Further, the appeal continued to be pursued after the death of the ward.
Following the decision dismissing the appeal, the Court of Appeal had a hearing on the proper costs orders to be made in the case. The HSE submitted that the legal practitioners should be personally liable for its costs on the basis that all the costs of the appeal amounted to wasted costs. It was submitted that the appeal was maintained by the legal practitioners without cause.
Court of Appeal
The Court noted that there was no evidence that TH knew or agreed that his case might be treated as a test case on costs in wardship matters. Instead, the only instructions that had been received were to oppose the wardship application. The Court noted that TH was not informed that his assets could be put at risk for the purposes of pursuing a test case. The Court accepted that test cases were important for Irish law but argued that TH was a vulnerable man in his 80s who had no family to intervene on his behalf.
Additionally, while it was said that the appeal was taken in order to protect TH’s estate, there was no evidence of any assessment as to the costs risk to TH’s estate from the appeal itself. In this regard, the Court commented that there were “no unlosable test cases” and the additional potential costs to TH’s estate were not disclosed.
It was held that the barristers position reflected their sincere but misguided confidence in the infallibility of the test case. Further, counsel’s contention that they were justified in pursuing the appeal for the benefit of their incapacitated client betrayed a fundamental misunderstanding of the duties of counsel to vulnerable clients. In particular, the lodging of the appeal ignored the significant legal implications of TH’s admission to wardship.
Similarly, the Court pointed out that the appeal was a litigation manoeuvre which could be taken without authorisation if the client was not under a disability. Following the death of TH, at no time did the lawyers seeking the consent of the executrix of the estate to pursue the appeal.
The Court outlined: “From the conclusion of the High Court proceedings TH was no longer a client of the legal practitioners. However, his identity and circumstances were availed of to pursue a test case.”
The Court also noted that a patient advocacy group, which was purportedly a charitable body, appeared to play a key role in the litigation. In particular, it was suggested that the group was “involved in instigating, co-ordinating and pursuing the litigation as a test case”. The Court warned that such bodies, while doing important work, need to be mindful of engaging in activities that require financial expenditure by vulnerable persons. This could compromise their charitable status, the Court commented.
The Court ultimately held that the errors of both counsel and the solicitor fell short of misbehaviour, particularly having regard to the input of the advocacy group in the case and to the well-meaning intentions regarding the interests of justice lay in the wardship proceedings. The Court emphasised that counsel may not pursue test cases without informed consent and those who disregard this could be personally exposed to costs.
The Court held that no order as to costs would be made in the appeal.