Mc Evoy & Anor v Turner [Practising Under the Style and Title of David Turner and Co Solicitors] & Anor (Approved)

Factual and Procedural Background

This opinion concerns professional negligence proceedings initiated by the Plaintiffs against two Defendants, both firms of solicitors previously instructed to represent the late Mrs. McEvoy in separate personal injury medical negligence claims. Mrs. McEvoy suffered a stroke on 9 May 2012, resulting in an acquired brain injury and requiring long-term care until her death in April 2021. The Plaintiffs allege that the Defendants were negligent in failing to serve proceedings, obtain expert medical reports, and renew the proceedings within the statutory time limits. There is a factual dispute regarding responsibility for obtaining expert reports and procedural steps. The Plaintiffs claim to act as attorneys under an unregistered Enduring Power of Attorney executed by Mrs. McEvoy in August 2012, as well as in the capacity of the executor of her estate. The Defendants seek to strike out the proceedings on the basis that the Plaintiffs disclose no reasonable cause of action and that the claims are unsustainable and bound to fail. The first named Defendant did not serve the original medical negligence proceedings due to lack of an expert report. The Plaintiffs later instructed the second named Defendant, who also failed to serve or renew proceedings. The Plaintiffs' claims arise from these alleged professional failings. The proceedings were struck out by the Court for failing to disclose any reasonable cause of action.

Legal Issues Presented

1. Whether the Plaintiffs, as unregistered attorneys or as executor and close relatives, have standing to bring professional negligence claims against the Defendants in respect of legal services provided to the late Mrs. McEvoy.
2. Whether the Plaintiffs' claims disclose a reasonable cause of action or are unsustainable, bound to fail, or an abuse of process.
3. The effect of the non-registration of the Enduring Power of Attorney on the Plaintiffs' legal status and capacity to bring the proceedings.
4. The application of Section 7 of the Civil Liability Act 1961 regarding survival of causes of action vested in a deceased person and the extent of damages recoverable by the estate.

Arguments of the Parties

Plaintiffs' Arguments

• They claim to be attorneys appointed under an Enduring Power of Attorney executed by the late Mrs. McEvoy, albeit unregistered.
• The first named Plaintiff also claims as executor of the late Mrs. McEvoy's estate.
• They allege professional negligence by the Defendants for failure to serve proceedings, obtain expert reports, renew proceedings, and for failure to register the Enduring Power of Attorney.
• The second named Plaintiff challenged the Defendants’ assertions regarding the capacity of Mrs. McEvoy and the registration of the Enduring Power of Attorney, relying on earlier medical evidence.
• They contend that damages should include special damages such as home adaptation costs, despite lack of evidence of such expenses.

Defendants' Arguments

• The Defendants contend that the Plaintiffs have no legal status to bring these proceedings as the Enduring Power of Attorney was never registered, and thus the Plaintiffs were never appointed attorneys with legal authority.
• The claims are not brought by the late Mrs. McEvoy herself, nor her estate, and any claim by the estate is statute barred.
• The Plaintiffs’ claims disclose no reasonable cause of action and are therefore liable to be struck out as unsustainable and bound to fail.
• They argue that the failure to register the Enduring Power of Attorney was not negligent as the registration was not possible due to Mrs. McEvoy’s mental capacity at the relevant times.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed the Plaintiffs’ status and found that the Enduring Power of Attorney executed by the late Mrs. McEvoy was never registered, meaning the Plaintiffs never acquired legal authority as attorneys with powers to institute or conduct the proceedings. The Court noted that the Plaintiffs brought the claims in their personal capacities, not on behalf of the estate or pursuant to a registered power of attorney, rendering their claims legally unsustainable. The Court further found no professional negligence in failing to register the Power of Attorney, as registration was not possible due to the late Mrs. McEvoy’s mental capacity at the relevant times, supported by the solicitors’ communications and medical evidence. The Court also considered the effect of Section 7 of the Civil Liability Act 1961, which allows causes of action to survive for the benefit of the estate but restricts damages recoverable to exclude pain and suffering, which formed the core of the medical negligence claims. The estate’s claims are now statute barred, and no amendment could save the proceedings. Consequently, the Court concluded that the proceedings disclose no reasonable cause of action and are bound to fail.

Holding and Implications

The Court STRUCK OUT the Plaintiffs’ proceedings pursuant to Order 19, Rule 28 of the Rules of the Superior Courts for failing to disclose any reasonable cause of action. The alternative grounds of dismissal under the Court’s inherent jurisdiction were also upheld as the claims were unsustainable and bound to fail.

The direct effect is the termination of the Plaintiffs’ professional negligence claims against the Defendants. The Plaintiffs have no standing to maintain these proceedings given their lack of legal status and the statute-barred nature of any claim by the estate. The Court indicated that the Defendants are entitled to their costs of the proceedings. No new legal precedent was established by this decision; it reaffirms existing principles regarding standing, powers of attorney, and survival of personal injury claims on death.