The High Court has ordered that the measured costs of legal representation for Mr H in a wardship inquiry be paid from his estate, rather than by the Health Service Executive (HSE). The ruling concerns who must pay for representation, not whether Mr H was entitled to be heard.
Mr H’s solicitors and counsel sought their costs from the HSE after representing him in proceedings that led to his admission to wardship on 2 July 2019. Mr H had initially objected to an inquiry. After obtaining two medical reports, his representatives did not contest the capacity evidence at the hearing.
The court accepted that it was appropriate for Mr H to have legal representation and that his legal team was entitled to measured costs. It rejected the claim that the HSE was necessarily responsible for paying them. The judge said the right to be heard could, where appropriate, be vindicated by an intended ward paying for representation from his own funds.
The judgment said the HSE had carriage of the inquiry and was not an unsuccessful party: the inquiry proceeded and Mr H was found to lack capacity and admitted to wardship. His solicitors had not asked the HSE in advance to agree to fund the representation. The court also found that Mr H’s estate had sufficient means to meet the measured costs. It did not accept that the constitutional or European human rights principles cited required a State body to pay in these circumstances.
The judgment records that Mr H strongly wished to leave the nursing home and return home. He owns a property near Athy, County Kildare, valued at approximately €220,000, and was residing at Ashley Lodge Nursing Home in the county. The General Solicitor was appointed committee of his person and estate when he was admitted to wardship.
The order is limited to the measured costs of representing Mr H in respect of the petition for an inquiry, payable from his estate. On the costs of the separate hearing about costs, the judge said she proposed that Mr H’s solicitors and the General Solicitor receive their measured costs from the estate, with no costs order against the HSE, subject to any submissions the parties might make.