The Court of Appeal has refused the Health Service Executive’s application to make a solicitor and two barristers personally pay its costs of an appeal pursued in the name of T.H., a deceased ward of court. The court found that the appeal continued without authority, but concluded that the practitioners’ conduct fell short of the misbehaviour required for a personal costs order.
The judgment, delivered by Ms Justice Máire Whelan on 17 February 2023, concerned costs arising from a preliminary issue in the appeal. The substantive judgment, delivered in October 2022, had already decided that the practitioners were not entitled to institute or pursue the appeal after the wardship proceedings concluded in the High Court. The wardship order itself was not challenged.
T.H. was taken into wardship by order of the President of the High Court on 2 July 2019. The order was ultimately unopposed. A later costs ruling by Ms Justice Hyland in October 2020 rejected the argument that the HSE should pay for T.H.’s legal representation and ordered that the measured costs be paid from his estate. The practitioners then filed an appeal in T.H.’s name. He died on 2 April 2021, and the appeal continued without the executrix’s consent or an application to substitute a personal representative.
The HSE sought its appeal costs directly from the practitioners, describing them as wasted costs incurred without reasonable cause. It argued that they had maintained the appeal without instructions from T.H.’s estate. The General Solicitor for Minors and Wards of Court sought no costs and said it was usual to bear its own costs when assisting the court.
The solicitor said she had relied on specialist counsel’s advice, had raised concerns about the proposed course and had acted diligently. Counsel argued that they pursued the appeal to protect the estate and clarify the law, and that the HSE’s success did not itself make them personally liable.
Justice Whelan found no evidence that T.H. knew his case was being used as a test case on wardship costs or agreed to the appeal. His understood purpose in retaining lawyers was to oppose wardship, and that purpose ended with the wardship decision. The court also found that the practitioners had failed to account adequately for the risk to his estate and the consequences of his death and the absence of the executrix’s authority.
The court nevertheless declined to make a costs order against the solicitor, who had reasonably relied on counsel’s specialist advice. It also declined to order costs against counsel, finding their errors and misguided approach fell short of misbehaviour warranting personal liability. The judgment warns that practitioners who pursue test cases for vulnerable people without informed consent, or litigate for a ward without appropriate authority, risk a personal costs order in future cases.