High court reporters
A 77-year-old woman claims she is entitled to be provided for from the estate of her late partner.
The High Court proceedings were brought by the woman in 2015 under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 which makes provision for cohabitees.
The case is against the executor of the estate of her late partner with whom she says she was cohabiting in an intimate and committed relationship for 33 years.
The executor opposed the action which began a year ago and was adjourned after 21 days of hearing. This was because the woman’s lawyers became concerned about her competency both during direct evidence and cross-examination.
The adjournment, sought by her lawyers, was so that she be medically assessed and later proposed that a family member or next best friend be appointed in her place to conduct the litigation.
Professor Harry Kennedy, consultant forensic psychiatrist and executive clinical director at the Central Mental Hospital Dundrum, was asked to carry out an assessment.
He found that, in his opinion, she lacked “the functional mental capacity to give instructions because of her impaired ability to understand and retain, to reason comparatively and consequentially regarding choices and to appreciate the importance of the decisions she is required to make.”
On the basis of Prof Kennedy’s report, her legal representatives concluded that it would be necessary to appoint a friend to conduct the litigation on her behalf.
The woman identified three family members or close friends who could act, but they had concerns regarding the time commitment required and any personal costs exposure of pursuing the case, especially as the woman herself did not seem to have the resources to pay such costs.
This meant her solicitors had to ask the court to make what is known as a “pre-emptive costs order” which meant the woman, and not the relative or friend who acts for her, would be made liable for the costs if she lost.
This application was resisted by the executor who argued the woman should be brought into wardship where her interests are protected by the court. The executor also had grave misgivings about Professor Kennedy’s conclusions in relation to her capacity and wanted, if necessary, to get another expert opinion which was opposed by the woman’s lawyers.
The issue of pre-emptive costs came before Ms Justice Emily Egan on Thursday who refused to make such an order.
Among her findings, she said the Assisted Decision-Making Capacity Act 2015 is to come into force imminently. It would provide a number of avenues by which the woman could be assisted or supported in making decisions in the litigation, she said.
The effect of a pre-emptive costs order would be to deny her the protection of the wards of court regime or the supports offered by the assisted decision-making legislation, she said.
It would also deny her the protection on costs usually afforded to persons of unsound mind who prosecute proceedings through a next friend.
“It seems to me that, for this applicant, such a scenario might well be the worst of both worlds”, she said.
The main case will not resume until the determination of other procedural issues in dispute including in relation to the potential appointment of a next friend and whether, and to what extent, the woman lacks capacity.