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CM v AV (Approved)
Factual and Procedural Background
The judgment concerns an application for registration of an Enduring Power of Attorney (EPA) executed on 10 July 2017 by a deceased individual (the "Donor"). The Donor appointed one adult child (the "Attorney") as attorney; another adult child (the "Objector") was a named notice party and objected to registration on grounds including unsuitability and alleged fraud or undue influence. The Attorney, acting under s.9 of the Powers of Attorney Act 1996, applied to register the EPA and issued a notice of motion to the High Court after the Objector filed a valid objection. Extensive affidavits and interlocutory steps followed. The Donor died on 21 June 2025, rendering the registration application moot. The sole outstanding issue thereafter was the allocation and quantum of costs. The High Court (Judge Barniville) heard submissions and decided whether costs should be paid by the parties or out of the Donor's estate and whether the court should refer the bill for adjudication.
Legal Issues Presented
- Who should bear the costs of a contested application to register an EPA that became moot due to the death of the donor?
- Whether costs claimed by the attorney should be paid out of the donor's estate or by the opposing notice party.
- Whether the court should refer disputed legal costs to a Legal Costs Adjudicator or measure them itself, and, if measuring, the appropriate quantum.
Arguments of the Parties
Attorney's Arguments
- The Attorney was statutorily obliged under s.9(1) of the 1996 Act to apply for registration once medical evidence suggested incapacity; the application was therefore not a voluntary private litigation to be borne personally.
- The general rule on mootness (that parties bear their own costs where mootness is independent of the parties) can be distinguished because of the statutory obligation and the welfare/inquisitorial nature of EPA registration; accordingly it may be fair for costs to be paid from the estate.
- The Attorney asked the court to measure costs rather than refer them for adjudication to avoid delay and further depletion of the estate, and submitted the fees claimed were fair and reasonable.
Objector's Arguments
- The Objector maintained her objection was made in good faith and that the legal work chiefly benefited the Attorney personally because the EPA was never registered; thus costs should be borne personally by the Attorney and not the estate.
- The Objector challenged the sufficiency and particularisation of the solicitor's bill and contended the solicitor acted for the Attorney personally (not for the Donor or estate) in the registration proceedings.
- The Objector offered limited contributions from the estate (initially €5,000, later €12,500) and argued that ordering estate payment for contested private disputes would deter legitimate safeguarding objections by notice parties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hughes v Revenue Commissioners [2023] 3 IR 395 | Where mootness arises from an event entirely independent of the parties, the fairest outcome will generally be that each party bears their own costs. | The court treated Hughes as establishing a general starting point but held it is not rigid: where an attorney has a statutory obligation to apply for registration, the court may depart from the general approach and direct estate payment if that is the fairest outcome. |
| E v G [2021] IECA 108 | EPA registration is an inquisitorial, welfare‑oriented process; default position ordinarily no order for costs against notice parties, but where such proceedings become lengthy and adversarial costs may follow the event; courts should be conservative about charging estate assets. | The court relied on E v G for guidance on the welfare purpose of the 1996 Act and the need for a conservative approach to awarding estate funds, but distinguished that case because the donor here had died and no adjudication on merits occurred. |
| Cunningham v President of the Circuit Court [2012] 3 IR 222 | Court should ordinarily make no order as to costs where mootness results from factors outside parties' control, but should lean to award costs where mootness results from a party's unilateral action. | Adopted as authority for the general approach to mootness; used alongside Hughes to frame discretion in this context. |
| Little v The Chief Appeals Officer [2024] IESC 53 | Explanation of ss.168–169 of the Legal Services Regulation Act 2015 and the court's power to award costs. | Referred to for statutory context on the court's costs powers under the 2015 Act. |
| Telefonica O2 Ireland Limited v Commission for Communications Regulation [2011] IEHC 380 | Principles on the court's approach to mootness and costs in administrative/proceedings rendered moot. | Quoted via Clarke J's approach in Cunningham to support the general proposition on costs where mootness is outside parties' control. |
| P. T. v Wicklow County Council [2019] IECA 346 | Authority cited to show that guidelines on costs allocation present a framework rather than rigid rules. | Used to support the proposition that Murray J's statements supply a general approach for judicial discretion rather than fixed rules. |
Court's Reasoning and Analysis
The court identified the governing statutory framework: ss.168–169 of the Legal Services Regulation Act 2015 and Order 99 RSC confer broad costs discretion, but s.169's "costs to follow event" principle could not operate because there was no adjudicated event—the registration application became moot on the Donor's death. The court analysed authorities on mootness (Cunningham and Hughes) which provide a general presumption that parties bear their own costs when mootness is independent of them, but emphasised that this is a flexible framework.
The court then considered the special character of EPA registration (as explained in E v G): an inquisitorial, welfare‑driven process in which attorneys have a statutory duty (s.9(1)) to apply for registration when there is reason to believe the donor is or is becoming mentally incapable. That statutory obligation distinguished the Attorney from an ordinary private litigant and meant the court could properly consider ordering estate payment where that produced the fairest outcome.
The court weighed the Objector's conduct (including issuing further discovery motions and affidavits after mootness) and the Attorney's willingness to compromise, the volume and reasonableness of work shown by fee notes and narratives, and the risk of further delay and depletion of the estate if costs were adjudicated. Concluding the fairest outcome was to direct payment from the Donor's estate, the court measured (rather than referred) the Attorney's costs, having found them fair and reasonable on the materials provided.
Holding and Implications
HOLDING: The court ordered that the Attorney's costs of the EPA registration proceedings and of dealing with the objections, measured at €20,000.00 (inclusive of VAT, counsel's fees and outlay), be paid out of the estate of the late Donor. The court also ordered that the Objector's costs and expenses in the amount of €1,017.00 be paid out of the estate. The EPA registration proceedings and all motions were struck out. No further order was made.
Implications: The decision applies the established discretionary framework on mootness and EPA costs to hold that, in particular circumstances (notably where an attorney had a statutory duty to apply and the donor died before determination), it may be the fairest outcome to charge costs to the donor's estate. The court exercised its discretion to measure costs itself rather than refer them for adjudication to avoid delay and further depletion of estate assets. The judgment does not purport to establish a rigid rule; it applies existing authorities to the facts. No broader legal principle was newly created beyond the application of the cited authorities to these facts.
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