The High Court has struck out professional negligence proceedings brought by members of the McEvoy family against two solicitors over earlier medical negligence claims concerning the late Eileen McEvoy.
Peter McEvoy and Linda McEvoy sued David Turner and James McSweeney, alleging failures in the handling of proceedings arising from Eileen McEvoy’s medical treatment after she suffered a stroke and acquired brain injury in May 2012.
Those medical negligence proceedings were issued in 2014 against the Mater Hospital, Beaumont Hospital and named doctors but were never served. There were disputes over who was responsible for obtaining the expert medical evidence required to progress them.
The central difficulty in the later solicitors’ negligence case was different. Ms Justice Marguerite Bolger found that Peter and Linda McEvoy had no cause of action in their own right for alleged professional negligence in legal services provided to Eileen McEvoy.
They relied partly on an Enduring Power of Attorney signed by Eileen McEvoy in August 2012 naming family members as attorneys. However, it was never registered. The court held that this meant they were never appointed attorneys with legal authority to act on her behalf in litigation.
Peter McEvoy’s status as executor under his wife’s will did not save the proceedings either. The case had not been brought by Eileen McEvoy’s estate, and any attempt to bring such an estate claim was now statute barred.
The court also noted that claims for pain and suffering do not survive a plaintiff’s death for the benefit of an estate under section 7 of the Civil Liability Act 1961. Any arguable special-damages claim would likewise have needed to be brought by the estate.
The proceedings were therefore struck out as disclosing no reasonable cause of action and as unsustainable and bound to fail. The judge’s preliminary view was that both solicitor defendants should receive their costs, subject to a further hearing.