CM v AV [2026] IEHC 111 — Costs of a Moot Enduring Power of Attorney Registration: Attorney’s Reasonable Costs Payable from the Deceased Donor’s Estate

1. Introduction

This decision of the High Court (Barniville P) addresses a recurring practical problem under the Powers of Attorney Act 1996 (the “1996 Act”): who should bear the costs of a contested application by an attorney to register an Enduring Power of Attorney (“EPA”) when the proceedings become moot because the donor dies before the court can determine the registration application.

The applicant, CM (the “Attorney”), was an adult child of the donor (HM) and was appointed as attorney under an EPA executed on 10 July 2017. The respondent, AV (the “Objector”), another adult child and a named notice party, filed a formal objection. As a result, the statutory registration process moved into a High Court motion under s. 9/s. 10 of the 1996 Act. Before the matter could be heard, the donor died on 21 June 2025, rendering registration pointless and the proceedings moot.

The central issue became the allocation (and quantum) of costs incurred in an inquisitorial statutory scheme that had turned highly adversarial, but was never determined on its merits due to mootness.

2. Summary of the Judgment

  • The court held that, notwithstanding the general approach in moot cases that each side bears its own costs, the fairest outcome here was that the Attorney’s reasonable costs should be paid out of the donor’s estate.
  • The court declined to order any part of the Attorney’s costs against the Objector (although it noted it might have considered such an order on the facts), because the Attorney did not pursue that relief.
  • To avoid delay, further expense, and depletion of the estate, the court chose to measure costs itself rather than direct adjudication by a Legal Costs Adjudicator.
  • The court measured and awarded:
    • €20,000 (inclusive of VAT, counsel’s fees and outlay) to the Attorney, payable from the estate; and
    • €1,017 to the Objector (costs/expenses), payable from the estate.
  • The proceedings and all motions were struck out as moot.

3. Analysis

3.1 Precedents Cited

Hughes v Revenue Commissioners [2023] 3 IR 395

The court treated Hughes v Revenue Commissioners as the key modern statement of principle on costs where proceedings become moot. Murray J identified (as a general approach) that where mootness arises from an event “entirely independent of the actions of the parties”, the fairest outcome will generally be that each party bears its own costs. Crucially, Barniville P emphasised that this is a framework, not a rigid rule, and that fairness may point elsewhere depending on the statutory context.

The judgment’s central move is to treat the EPA setting as a materially different category: the Attorney did not simply choose to litigate; she was subject to a statutory duty under s. 9(1) of the 1996 Act. That duty displaces the “ordinary civil plaintiff” analogy that underpins the default “bear own costs” approach in moot cases.

Cunningham v President of the Circuit Court [2012] 3 IR 222

The court relied on Clarke J’s statement that, where mootness is caused by a factor outside the parties’ control, courts should ordinarily lean towards no order as to costs, but should lean towards costs against the party whose unilateral action caused the mootness. Barniville P used this to anchor the general principle, while explaining why the EPA context warranted a different “fairest outcome”.

Telefonica O2 Ireland Limited v Commission for Communications Regulation [2011] IEHC 380

This case was cited via Cunningham as the earlier articulation of the “mootness and costs” approach. It underpins the general leaning against costs consequences where neither party is responsible for mootness, but it did not determine the outcome because the EPA scheme introduced additional fairness considerations.

E v G [2021] IECA 108

The court treated E v G as the leading appellate authority on costs in contested EPA registration applications. Whelan J described the EPA registration process as inquisitorial and “welfare oriented”, warning that donors’ assets are primarily for “welfare needs, care, maintenance and upkeep” and that courts should adopt a conservative approach to awarding costs out of the donor’s estate. She also cautioned against using EPA proceedings to ventilate “inter-familial grievances”.

Barniville P drew two key distinctions:

  • No “event”: unlike E v G, the application here was not decided, so there was no successful/unsuccessful party and no “costs follow the event” outcome available.
  • Donor deceased: the “sharp focus” on preserving assets for the donor’s ongoing care (central in E v G) has less direct force once the donor has died, though conservatism remains relevant to protect the estate from unnecessary depletion.

Rather than being authority against estate-borne costs, E v G informed the court’s caution: any estate-borne order must still be justified as fair, proportionate, and consistent with the welfare purpose of the 1996 Act, even if the donor’s ongoing care is no longer a live consideration.

Little v The Chief Appeals Officer [2024] IESC 53

Little v The Chief Appeals Officer was cited for the structure of the costs jurisdiction under the Legal Services Regulation Act 2015 (the “2015 Act”), confirming that ss. 168 and 169 confer and regulate the court’s power to award costs, and that entitlement to costs under s. 169 depends on “entire success”. This supported the conclusion that s. 169 was not engaged because the proceedings ended without determination.

P. T. v Wicklow County Council [2019] IECA 346

This case was cited (via Hughes) to reinforce that “mootness costs” principles are not to be applied “inflexibly or in an excessively prescriptive manner”. That flexibility was central to the court’s choice to order estate payment as the fairest outcome.

3.2 Legal Reasoning

(a) The statutory setting: EPA registration is not ordinary adversarial litigation

The court emphasised that the 1996 Act imposes a statutory obligation on an attorney: s. 9(1) requires an application for registration “as soon as practicable” once the attorney has reason to believe the donor is or is becoming mentally incapable. Here, medical reports (notably Dr POS’s report of 22 December 2023) triggered that duty.

This statutory duty mattered in costs terms: it would be unfair if an attorney who acts bona fide in compliance with s. 9(1) must personally absorb the costs whenever death intervenes before adjudication—particularly where an objector’s stance makes the process expensive. That is the judgment’s core fairness rationale for departing from the general mootness approach.

(b) Costs jurisdiction and the “absence of an event”

The court located its power in:

  • Order 99 of the Rules of the Superior Courts (general discretion); and
  • ss. 168 and 169 of the 2015 Act (statutory structure for costs).

Because the merits were never decided, neither party was “entirely successful” and s. 169’s “costs follow success” architecture did not apply. The case therefore fell into the court’s broader discretionary space—guided by mootness authorities and by the EPA-specific principles in E v G.

(c) Why the estate (not “each side pays”) was the fair outcome

The court’s synthesis was:

  • Mootness was caused by an external event (the donor’s death).
  • Yet, the Attorney was not a voluntary litigant; she was discharging a statutory duty under s. 9(1).
  • Ordering the Objector to pay was inappropriate absent a merits determination (though the court noted post-mootness conduct that could have justified partial costs).
  • Accordingly, the estate was the most principled and proportionate source of payment, particularly as the donor’s ongoing care was no longer at stake.

A notable practical consideration reinforced fairness: the Attorney was the largest beneficiary under the will, so an estate-borne costs order would, in effect, fall disproportionately on her anyway.

(d) Measuring costs vs adjudication

Although adjudication by a Legal Costs Adjudicator was available, the court refused it on proportionality grounds: adjudication would create delay, add cost, inflame already contentious sibling conflict, and further deplete estate assets. Instead, the court measured costs itself, settling on €20,000 (inclusive). This reflects an increasingly explicit judicial concern with costs process proportionality in lower-value disputes.

3.3 Impact

  • Practical precedent for EPA litigation interrupted by death: the decision supports the proposition that, where a contested EPA registration becomes moot due to the donor’s death, the court may treat estate payment of the attorney’s reasonable costs as the “fairest outcome”, notwithstanding general mootness cost principles.
  • Reinforces the statutory-duty lens: attorneys complying with s. 9(1) should not be analogised to ordinary civil claimants who choose to sue, especially where objections drive significant cost.
  • Signals limits on post-mootness escalation: while no costs were ordered against the Objector here (because not pursued), the judgment expressly flags that unnecessary steps after mootness (e.g., discovery motions) may justify adverse costs in a suitable case.
  • Encourages proportionate costs resolution: the court’s willingness to measure costs itself (rather than send for adjudication) suggests a pragmatic route where further process would be value-destructive.

4. Complex Concepts Simplified

  • Enduring Power of Attorney (EPA): a document by which a person (the “donor”) appoints an “attorney” to manage their property/affairs, intended to operate if the donor later becomes mentally incapable.
  • Registration of an EPA: under the 1996 Act, the attorney must apply to register the EPA when the donor is or is becoming mentally incapable. Registration activates the attorney’s authority in the statutory scheme.
  • Notice party / objection: people named (or otherwise specified) must be notified before registration. They may object on statutory grounds (including “unsuitable attorney” or “fraud/undue influence”).
  • Inquisitorial vs adversarial: “inquisitorial” means the court’s role is supervisory and welfare-focused (not just deciding a dispute between two sides), though objections can make the process adversarial in practice.
  • Mootness: a case becomes moot when events mean the court can no longer grant meaningful relief. Here, the donor’s death meant registration served no purpose.
  • “Costs follow the event”: the usual rule that the winner gets costs. It did not apply because there was no winner—no merits decision.
  • Measured costs vs adjudication: “measuring” is the judge fixing an amount directly; “adjudication” sends the bill to a specialist process, which can be slower and itself costly.

5. Conclusion

CM v AV establishes a clear, context-sensitive approach to costs where EPA registration proceedings become moot by the donor’s death. While mootness authorities generally point towards each side bearing its own costs, the High Court held that EPA cases can justify a different result: because an attorney is under a statutory duty to seek registration, and because there is no merits “event” to allocate blame or success, the fairest resolution may be to direct reasonable costs to be paid from the deceased donor’s estate.

The decision also underscores two practical messages: (i) EPA proceedings are not a vehicle for open-ended family conflict, and (ii) courts will favour proportionate cost-management tools—such as judicial measurement—where further process would waste estate assets.