Court of Appeal: Barristers avoid wasted costs order despite pursuing appeal without proper instructions

Court of Appeal: Barristers avoid wasted costs order despite pursuing appeal without proper instructions

The Court of Appeal has held that it would not make a wasted costs order against counsel and solicitor who pursued an appeal on behalf of a ward of court without proper instructions. The ward had not been informed that his appeal was treated as a “test case” by the lawyers and died before the appeal came on for hearing.

Delivering judgment in the case, Ms Justice Máire Whelan said that it was “regrettable” that steps were not taken to ensure that the vulnerable ward was aware that his opposition to wardship “was being co-opted into a test case on an aspect of costs” which could deplete his estate. The barristers were “suffused with the zeal of establishing a principle” and were insufficiently sensitive to the right and interests of the ward, the court said.

However, it was held that the errors fell short of the misbehaviour which would merit a costs order against the barrister personally. The court noted that a patient advocacy body appeared to be heavily involved in the matter although it was not a party to the proceedings.


Previously, the Court of Appeal had dismissed an appeal which was brought by the lawyers of a ward of court, known as TH, on the basis that the lawyers did not have any lawful authority to pursue the appeal. The full details of that decision can be found here.

In summary, the court held that the lawyers had not obtained instructions from TH to pursue the appeal. It also transpired that TH died prior to the appeal hearing. The substance of the appeal related to the costs of an application by the HSE to make TH a ward of court. The lawyers had argued in the High Court that the HSE should bear the TH’s legal costs rather than have the costs come out of his estate.

Following the decision dismissing the appeal, the Court of Appeal had a hearing on the proper costs orders to be made in the case. The HSE submitted that the legal practitioners should be personally liable for its costs on the basis that all the costs of the appeal amounted to wasted costs. It was submitted that the appeal was maintained by the legal practitioners without cause. In seeking a wasted costs order, the HSE relied on the principles outlined in Chubb European Group SE v Health Insurance Authority [2020] IECA 183 and Ward v Tower Trade Finance (Ireland) Limited [2022] IECA 70.

In opposing a wasted costs order, the solicitor for TH submitted that she had relied on the advices of counsel to pursue the appeal. It was emphasised that the issues which the court had criticised in the substantive decision had been considered by the solicitor and raised with counsel prior to the appeal. Further, the solicitor outlined that her involvement arose through a referral by a patient advocacy group for older people.

Both senior and junior counsel acted in the matter and made submissions on their liability as to costs. It was argued that the barristers pursued the appeal based on the ward’s interests and to protect the ward’s estate from costs. It was also submitted that there was a public interest element to the appeal in clarifying the position on costs where the HSE brings an application to admit an individual to wardship. As such, it was said that the appeal on behalf of TH amounted to a test case.

Court of Appeal

Ms Justice Whelan began her assessment by outlining that there was no evidence that TH knew or agreed that his case might be treated as a test case on costs in wardship matters. Instead, the only instructions that had been received were to oppose the wardship application. The court held that the TH was not informed that the application “was to provide a vehicle whereby his estate and assets would be laid out or put at risk by way of a test case” on costs.

There was nothing in the section 68 letter or any correspondence which indicated that steps were taken to appraise TH of the position. Although the court accepted that test cases were important in the Irish legal order, TH was a vulnerable man in his 80s who had no family to intervene in the matter.

Additionally, while it was said that the appeal was taken in order to protect TH’s estate, there was no evidence of any assessment as to the costs hazard to TH’s estate from the appeal itself. In this regard, the court commented that there were “no unlosable test cases” and the additional potential costs to TH’s estate were not disclosed.

Considering the Ward v. Tower principles, it was contended by the barristers that a mere error of judgment was not sufficient for a wasted costs order. However, the court said “if it was clear that counsel repeatedly overrode or elected to ignore the legitimate concerns of the solicitor and failed to ascertain the practical consequences of adverse costs orders for a vulnerable litigant in the course of the litigation, such behaviour could potentially amount in a given case to deliberate misbehaviour”.

It was held that the barristers position reflected their sincere but misguided confidence in the infallibility of the test case. Further, counsel’s contention that they were justified in pursuing the appeal for the benefit of their incapacitated client betrayed a fundamental misunderstanding of the duties of counsel to vulnerable clients. In particular, the lodging of the appeal ignored the significant legal implications of TH’s admission to wardship.

Similarly, the court pointed out that the appeal was a litigation manoeuvre which could be taken without authorisation if the client was not under a disability. Following the death of TH, at no time did the lawyers seeking the consent of the executrix of the estate to pursue the appeal.

The court outlined: “From the conclusion of the High Court proceedings T.H. was no longer a client of the legal practitioners. However, his identity and circumstances were availed of to pursue a test case.”

The court also noted that a patient advocacy group, which was purportedly a charitable body, appeared to play a key role in the litigation. In particular, it was suggested that the group was “involved in instigating, co-ordinating and pursuing the litigation as a test case”. The court warned that such bodies, while doing important work, need to be mindful of engaging in activities that require financial expenditure by vulnerable persons. This could compromise their charitable status, the court commented. In the instance case, the advocacy group had “a considerable degree of input” in the case.

Having regard to the circumstances, the court held that it was appropriate for the solicitor to place reliance on the advice of counsel. She did not abdicate her profession responsibilities by acting on the advice of counsel, even though the advice was inaccurate. The solicitor sought to stress-test the advice and was justified in relying on counsel who had expertise in the area of law.

For counsel, the court held that it was “regrettable” that steps were not taken to advise TH of his opposition to wardship being “co-opted into a test case” on costs. They acted in error by assuming that the presence of the General Solicitor at various for mention hearings amounted to consent to pursue the appeal. They did not “take full account of the rights and interests of TH” as they were “suffused with the zeal of establishing a principle”.

However, the errors fell short of misbehaviour, particularly having regard to the input of the advocacy group in the case and to the well-meaning intentions regarding the interests of justice lay in the wardship proceedings. The court emphasised that counsel may not pursue test cases without informed consent and those who disregard this could be personally exposed to costs.


The court held that no order as to costs would be made in the appeal.

In the matter of TH (A Ward of Court) [2023] IECA 35

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