The Court of Appeal has dismissed an appeal over costs in a dispute about registering an enduring power of attorney, leaving in place an order that two notice parties pay six-sevenths of the respondents’ High Court costs.
The appeal concerned only the costs order made after the High Court registered the power and issued directions for the donor’s welfare. The appellants did not appeal the registration or the finding that they had not established that either nominated attorney was unsuitable.
The donor had appointed two of her children, identified in the judgment as E. and F., as attorneys in an instrument executed in 2008. In 2019, as her health deteriorated, they applied to register it. Her other children G. and H. objected, arguing that E. was unsuitable because he had sold her Glanbia shares and used the proceeds in work on a property where she had a right of residence. They also challenged F.’s suitability.
The High Court found that the objectors had not proved the attorneys unsuitable. It found that the donor had capacity when the shares were sold and the proceeds applied, and that the objections were raised years after the objectors knew of the transaction. Those findings were not appealed. The High Court nevertheless issued directions under the Powers of Attorney Act 1996, including that the donor remain in her nursing home absent a medical emergency, that her income and care expenses be managed through an account in her name, and that the attorneys provide annual financial statements to their siblings.
The Court of Appeal said routine registration applications should generally carry no order as to costs. It also said notice parties should ordinarily be able to put welfare concerns before the court without cost consequences unless a lack of bona fides is established. But it upheld the High Court’s costs order on the circumstances of this case: the objections expanded the proceedings into a lengthy adversarial hearing, and the High Court had found that the appellants knew of the share transaction for years without raising concerns. The court also considered that they had rejected a February 2020 settlement proposal under which E. would step aside and F. would act alone.
The court said the High Court was entitled to award six-sevenths of the respondents’ costs, reflecting its estimate that a hearing confined to the directions issue would have taken one hour rather than about seven. It dismissed the appeal. For the appeal itself, it ordered the appellants to pay half of the respondents’ costs, citing the public interest in clarifying the approach to costs in these cases and the benefit of the welfare directions made after their intervention.