The Court of Appeal has dismissed an appeal by Linda McEvoy arising from professional negligence proceedings against two solicitors who had acted in relation to proposed medical negligence claims concerning her late mother, Eileen McEvoy of Clontarf, Dublin.
Mrs McEvoy suffered a severe stroke on 9 May 2012 and received treatment at the Mater Hospital and Beaumont Hospital. She did not recover and required 24-hour care until her death on 1 April 2021. Her husband Peter McEvoy and daughter Linda later alleged that solicitors David Turner and James McSweeney had failed to progress potential medical negligence proceedings properly, including by allowing earlier personal injuries summonses to expire.
The central difficulty, however, was who had legal authority to bring the later negligence proceedings against the solicitors.
Mrs McEvoy had executed an enduring power of attorney in August 2012 appointing family members, but that power was never registered. Mr Justice Binchy held that, under the Powers of Attorney Act 1996, it therefore never came into force and gave the nominated attorneys no legal power to litigate on Mrs McEvoy’s behalf.
The court also found that Peter McEvoy, although named executor in his wife’s will, had no grant of probate when the proceedings were issued. The fact that the plaintiffs were Mrs McEvoy’s husband and daughter did not itself give them standing to sue for losses allegedly suffered by her.
The Court of Appeal upheld the High Court’s decision to strike out the case as disclosing no sustainable cause of action. It also rejected an argument that Linda McEvoy should have obtained judgment in default of defence against Mr McSweeney, holding that once the underlying proceedings were struck out there was no remaining action requiring a defence.
The court added that any surviving claim was now barred by limitation rules and that damages for Mrs McEvoy’s pain, suffering and personal injury could not be recovered for her estate under section 7 of the Civil Liability Act 1961. The respondents were provisionally entitled to their appeal costs.