Lawyers had no authority to appeal order after client was admitted to wardship, court rules

A set of lawyers had no lawful authority to appeal a costs order made against the estate of a man they represented in wardship proceedings, the Court of Appeal ruled on Friday.

In a judgment on behalf of the three-judge court, Ms Justice Máire Whelan said it “ought to have been obvious” to the lawyers that they ceased to have a client when the High Court made orders admitting the man into wardship in July 2019.

The lawyers, who were not identified in the ruling, did not have a client or instructions when they filed an appeal in the man’s name, she said. The man died last year while in his 80s.

Ms Justice Whelan said it appears the man first engaged solicitors so he could oppose the Health Service Executive’s application to make him a ward of court. She said the solicitors and counsel represented the man’s interests in court in connection with the wardship application, presenting affidavits from two consultant doctors.

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The High Court admitted the man into wardship after finding him to be of unsound mind and incapable of managing his affairs due to his advanced dementia.

His lawyers argued that the HSE was liable, rather than the man’s estate, for their legal costs.

Ms Justice Niamh Hyland ruled in October 2020 that the man’s legal fees should be paid out of his estate.

The lawyers appealed this costs ruling.

Ms Justice Whelan said the High Court’s costs order in October 2020 brought the inquisitorial wardship process to an end “and with it the retainer of the legal practitioners” for the man. He ceased to be their client, she said, when he was taken into wardship.

In general, when a person is declared a ward they lose the right to make decisions pertaining to their person and property, with decision-making functions fall to a court-appointed committee, she said.

Ms Justice Whelan said there was no evidence that the ward’s committee was made aware that a notice of appeal was going to be filed, while the executrix of the man’s estate opposed the appeal.

Ms Justice Whelan said a solicitor and junior and senior counsel purported to act on behalf of the man in the appeal hearing, which took place after he had died.

The lawyers’ assertion during the hearing that they “do not need to have a client” was “untenable”, said the judge.

Further, she said, the “purported pursuance” of an appeal that would potentially incur legal costs and expenses in the name of the ward or his estate potentially breaches his constitutionally protected property rights.

The court struck out the appeal as having been improperly brought without instruction or lawful authority.

Her preliminary view that any claim by the appellant lawyers for their costs occurred in the appeal would not be maintainable. She invited the HSE and the general solicitor, as committee, to make submissions about their costs.

Mr Justice David Barniville and Mr Justice Brian Murray confirmed their agreement with the judgment.