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[2020] IEHC 20

THE HIGH COURT

WARDS OF COURT

IN THE MATTER OF THE APPROPRIATE CARE OF A WARD OF COURT

JUDGMENT ON COSTS of Mr. Justice Denis McDonald delivered on 24 January, 2020

1. This judgment is concerned solely with the issue of costs. The unusual underlying facts

have already been set out in detail in the judgment delivered by me on 31st May, 2019

([2019] IEHC 393) and do not require to be repeated in detail here. In this judgment, I

will use the same abbreviations as in my May 2019 judgment. In that judgment, I

described the unfortunate circumstances which left the Ward in a PVS condition. While

initially cared for by the HSE in a Community Nursing Unit, the Ward was subsequently

transferred to a sophisticated home facility constructed specifically for her care in an

extension to her parents’ home. The transfer of the Ward to the home facility occurred in

March 2015 and thereafter a private care team was engaged to look after the Ward. This

was funded by the proceeds of a settlement paid to the Ward by way of compromise of a

claim brought on her behalf relating to the brain injury sustained by her.

2. In June 2018, it became clear that the proceeds of the settlement would not be sufficient

to continue to care for the Ward. Against that backdrop, the issue of the long-term care

arrangements for the Ward was listed before Kelly P. (at his own direction) on Monday

2nd July, 2018 so that the court could be updated on the issue as to how the ongoing

care of the ward was to be managed. The Committee of the Ward was requested to

submit a proposal in relation to the Ward’s long-term care arrangements. In addition, the

solicitors for the HSE were notified of the matter by letter dated 14th June, 2018 which

also noted that an assessment had been carried out by the HSE team of the current care

needs of the Ward. Subsequently, both the Committee and the HSE set out proposals for

the ongoing care of the Ward. It will be necessary, in due course, to address those

proposals in more detail. It is sufficient, at this point, to note that, in broad terms, the

initial position adopted by the Committee was that the Ward should continue to be cared

for in the home facility at the expense of the HSE. In contrast, the initial position adopted

by the HSE was that the Ward should be cared for in the Community Nursing Unit.

3. In addition, there was an issue between the parties as to the terms of an appropriate Do

Not Resuscitate Direction (“DNR”). A form of DNR had been executed by the Committee

on 30th August, 2018 (following consultation with the general practitioner treating the

Ward) which stated that in the event of a full cardio-pulmonary arrest, CPR should not be

attempted. However, the DNR also stated that in the event of a respiratory arrest

without a cardiac arrest, relief was to be provided for a period of five minutes through the

mechanism of a device known as an Ambu bag which would be used to stimulate

respiration. The DNR stated that CPR should not be applied if respiration had not been

restored after five minutes use of the Ambu bag.

4. Having regard to the condition of the Ward and the medical advice available to the HSE,

the HSE was concerned about the appropriateness of the DNR proposed by the Committee

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and suggested the removal of any reference to the use of the Ambu bag. There were,

accordingly, three issues in dispute between the parties namely:-

(a) The appropriateness of the DNR which had been executed by the Committee on

30th August, 2018;

(b) Whether the court should accept on behalf of the Ward, the offer made by the HSE

of residential care for the Ward at the Community Nursing Unit which the HSE

argued was appropriate having regard to the PVS diagnosis in respect of the Ward;

to fund the existing home care package. This was strongly contested by the HSE

which contended that, as a matter of law, there could be no basis for any order

compelling the HSE to allocate its financial or healthcare resources in a particular

way. The HSE submitted that it must be in a position to decide how its resources

should be applied and that it was not the function of the court to interfere in that

process.

5. The matter appeared before Kelly P. on a number of occasions in the period between July

2018 and early 2019. In the course of that time, the HSE, very helpfully but without

prejudice to its position as summarised in para. 4 (c), continued to fund the existing

homecare package for the Ward which had been put in place by the Committee. During

this period, a number of medical reports were obtained. These included a report from

Professor Conor Burke who was instructed at the specific direction of Kelly P. In his

report, Professor Burke suggested that, although PVS patients are usually most

appropriately managed in a nursing home environment rather than at home, it would be

possible to continue to maintain and care for the Ward in the home facility with a scaled

down care team. Professor Burke suggested that her needs could be met by the

presence, on a 24 hour basis, of one permanent carer as opposed to a permanent nurse

and carer under the then current arrangements which were in place.

6. Professor Burke also dealt with the terms of the DNR. In his report, he confirmed that he

had discussed the matter in detail with the Ward’s parents and they confirmed their

agreement to replace the DNR described above with a new DNR which would provide that

no resuscitation measures should be instituted in the event of a cardiac arrest, a

respiratory arrest or a cardio-pulmonary arrest. Under the replacement DNR, no use

would be made of the Ambu bag or any other extraordinary measure but all comfort

measures, including morphine (as required) would be continued.

7. Following receipt of Professor Burke’s report in January 2019, the HSE, in February 2019,

put forward a revised proposal (as an alternative to care in the Community Nursing Unit)

under which the care of the Ward would be continued at the home facility. This would

involve:-

(a) The attendance for two hours per day of a registered general nurse to attend to the

Ward’s nursing needs;

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(b) The attendance of a healthcare assistant on a 24 hour basis to support the family of

the Ward to maintain and provide comfort for her in the home; and

her care needs and would be required to be present at all times in the absence of

the registered general nurse.

8. It should be noted that the cost of this revised proposal was less than the cost of

maintaining the Ward in the Community Nursing Unit. This revised proposal was not,

however, accepted by the Committee. In a letter dated 26th February, 2019, the

solicitors for the Committee indicated that, in the view of the Committee, the appropriate

minimum level of care required for the Ward would be the presence of two healthcare

assistants on a 24 hour basis. With a view to minimising the cost of this arrangement,

the Committee proposed that, in light of the views expressed by Professor Burke, there

should be no need to require the attendance of a registered general nurse. Instead, it

was suggested that the parents of the Ward, with the guidance of the general

practitioner, would assume the duties of the nurse in terms of administering medication

and food and carrying out any further medical requirements.

9. This counter proposal by the Committee was opposed by the HSE. In broad terms, the

position of the HSE was that the presence of a registered general nurse as a team leader

was an absolute necessity in order to ensure that an appropriate level of care was

provided to the Ward. In addition, the HSE maintained that the presence of one carer

would be sufficient and that it was the obligation of the parents of the Ward to provide

any additional care that might be required. The HSE strongly argued that its resources

were limited and that it was the only appropriate party to determine how its resources

should be allocated. It should be noted that, under the proposal made by the HSE, no

provision was made for any respite for the Ward’s parents. In other words, there was no

provision for the attendance of a second carer to relieve the obligations on the Ward’s

parents as envisaged under the third element of the revised HSE proposal (summarised in

para. 7 (c) above).

10. Subsequently, a hearing took place before me over four days in March 2019 following

which I delivered judgment in May 2019 in which I confirmed the terms of the revised

DNR proposed by Professor Burke (which was not opposed by the Committee during the

course of the hearing in March) and examined the concerns of the HSE in relation to the

care plan proposed by the Committee. In paras. 98 to 103 of my judgement, I sought to

address those concerns. In my May 2019 judgment I did not determine the legal issues

that were debated in the course of the hearing in March 2019 in relation to whether the

HSE could be compelled to provide funding for the home care plan proposed by the

Committee. Instead, I simply asked the HSE to consider the views expressed by me in

the judgment. I indicated that, in the event that a resolution could not be achieved, I

would rule on the legal issue as to whether the HSE can be compelled by court order to

fund the care package for the Ward to a level set by the court. In the meantime, I asked

the parties to consider the views expressed in the judgment. I further indicated that, if

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there were insuperable difficulties for the HSE in taking the course suggested by me in

the judgment, I was still of the view that any care plan put in place by the HSE would

require some level of adjustment to provide for an appropriate level of respite for the

Ward’s family.

11. The matter was then adjourned to allow the parties to consider the judgment. In a letter

dated 18th June, 2019 from the HSE’s solicitors, the HSE sought to explain why it would

not be possible for it to proceed in the manner suggested in my May 2019 judgment. The

matter thereafter came on for hearing before me on 21st June, 2019. On that occasion, I

indicated to the HSE that I was unhappy with the approach taken in the letter of 18th

June, 2019 and I requested that the HSE should review the matter again and in particular

address the issue of appropriate respite for the parents of the Ward. The matter was

adjourned to July 2019. At that point, a very detailed and considered submission was

made by the HSE in its solicitor’s letter of 4th July, 2019 which, in my view, demonstrated

that the HSE had given appropriate consideration to the judgement of May 2019. In that

letter, the HSE also set out revised proposals for respite care under which a second

healthcare assistant would be provided on a 24 hour basis for 30 days per anum. As

explained in the letter from the solicitors for the HSE (at p. 21):-

“This is a very significant amendment to the Comfort Care Package [previously

proposed by the HSE]. It is designed to engage in a constructive and substantive

manner with the points made at paragraph 118 of the Judgment in light of the

additional comments of the Court on 21 June 2019. It is indicative of the HSE’s

good faith desire to promote the best interests of the Ward and to engage

constructively with this Honourable Court wherever reasonably possible for it to do

so”.

12. When the matter next came before me in July 2019, I heard submissions from the parties

and indicated that, in the absence of determining the legal issue, I did not believe that I

could direct the HSE to go any further than what was proposed in the letter from their

solicitors of 4th July, 2019. I then enquired of counsel for the Committee as to whether

the Committee wished me to proceed to determine the legal issue and I was informed by

counsel that the Committee did not propose to do so at this time. In those

circumstances, the court approved the care plan proposed by the HSE as modified in the

course of the hearing in March 2019 in relation to the provision of certain additional

equipment including a new bed designed to minimise the development of pressure sores

and as further modified in the letter of 4th July, 2019 (i.e. the modification to include 30

days respite on the terms quoted in para. 11 above).

13. The matter was adjourned to October 2019, at which point, directions were given in

relation to the determination of any dispute between the parties in relation to costs.

Thereafter, written submissions were delivered on behalf of both parties in relation to the

issue of costs. In addition, oral argument was heard by me in relation to costs at a

hearing which took place on 5th November, 2019.

The arguments of the parties

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14. The HSE did not seek costs against the Committee. The positon of the HSE was that,

although it contended that it had succeeded in the proceedings, no order for costs should

be made. In accordance with the provisions of O.99 r.1, the HSE argued that the normal

rule is that the costs of every proceeding “follow the event” and that this principle can

only be departed from where there are special circumstances that justify a departure from

the normal rule on the basis that the interests of justice so require. The HSE argued that

it had succeeded in relation to the DNR issue. With regard to the issue of the care of the

Ward, the HSE submitted that it pro-actively responded to the report from Professor

Burke by proposing the option of a care package as an alternative to the proposed

placement in the Community Nursing Unit. The HSE drew attention to the fact that, by

letter dated 26th February, 2019, the solicitors for the Committee refused to accept the

HSE proposal for a homecare plan. As a consequence of the Committee’s unwillingness to

accept the HSE plan, a four-day hearing ensued involving extensive oral evidence. The

HSE submitted that, ultimately, the court approved the homecare plan offered by the HSE

and declined to make any order compelling the HSE either to amend its offer or to provide

or fund the homecare plan proposed by the Committee.

15. Against the backdrop described above, the HSE argues that it was successful in relation to

both the DNR issue and the care plan. While, under the normal rule, the HSE would be

entitled to an order for its costs against the Committee, it was indicated that the HSE did

not seek its costs.

16. In the event that the Committee sought to suggest that the court should depart from the

normal rule applicable under O.99, the HSE argued that there was no basis, in the

interests of justice, to “radically” depart from the normal rule and award costs in favour of

the Committee against the HSE. In relation to this element of its argument, the HSE

placed particular emphasis on the following:-

(a) The role of the HSE in these proceedings was quite different to the far more

common scenario in which the HSE comes before the court in wardship as a

petitioner or as an applicant seeking a series of orders against a particular

respondent. In this case, the role of the HSE was entirely different. It was not in

any sense the moving party. It has at no time sought any order from the court to

impose any treatment or service on the ward. It was submitted that it would be

inappropriate to compel the HSE to pay the legal costs of a Committee in

proceedings essentially initiated by the court and necessitated by the previous

decision of the Committee to remove the ward from the Community Nursing Unit

and to place her in a privately arranged home care package which created a

manifestly unsustainable financial burden for the ward.

(b) Secondly, the HSE suggested that its conduct in the proceedings showed that it had

acted at all times reasonably particularly in light of the PVS condition of the Ward.

The HSE argued that the homecare package devised by the Committee had been

premised on a mistaken contention that the Ward had “locked-in syndrome” and

was not in a PVS condition. The HSE also highlighted the fact that it had incurred

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the additional cost of funding the status quo for a significant period of time in the

period between July 2018 and July 2019;

by a mistaken positon adopted by the Committee who had refused to take on board

the issues highlighted in a letter of 26th June, 2018 sent by the solicitors for the

HSE which had highlighted issues in relation to clinical governance, levels of care,

the terms of the DNR and the viability cost and sustainability of providing for the

care of the ward in the home facility.

(d) The HSE argued that there were significant issues of principle precedent and public

policy which weighed against the making of an award of costs against it. In this

context, the HSE laid particular emphasis on its statutory obligation to operate

within its allocated budget, to have regard to the resources available to it and the

need to secure a beneficial effect of and efficient use of those resources. These are

matters which are quintessentially for the HSE itself. It was argued that it would be

unjust and unsustainable to expect the HSE to pay the legal costs of the

“unsuccessful moving party”. It was urged that it would be entirely inappropriate

(in the context of a healthcare system where demand outstrips resources), that the

HSE would be exposed to: “the costs and inconvenience of what in effect would be

risk-free legal challenge by dissatisfied service users”.

(e) The HSE also argued that the unfortunate circumstances of the Ward and her family

cannot of themselves provide a justification for an order compelling the HSE to pay

the legal costs of this “unsuccessful challenge”.

17. In response, the Committee argued that the circumstances underlying these proceedings

are exceptional. Although the Committee and the HSE held opposing views as to the

appropriate mode of care for the Ward, the proceedings did not involve adversarial

litigation in the normal sense. The Committee argued that, in those circumstances, there

was no clear “event” for the purposes of O.99. Instead, it was submitted that the

proceedings were analogous to an inquiry as to the best interests of the Ward.

18. In the alternative, the Committee argued that, if the matter is to be assessed by

reference to classic “follow the event” principles, the Committee should be regarded as

having substantially succeeded in the proceedings. In this context, the Committee

emphasised that in the period from July 2018 to February 2019, the HSE maintained that

the only suitable mode of care for the Ward was by way of a residential placement in the

Community Nursing Unit. It was only on 15th February, 2019, following receipt, at a late

stage in these proceedings, of the report of Professor Burke, that the HSE first

countenanced any form of alternative care. According to the Committee, this represented

a “major departure” from the HSE’s previous position and a “significant milestone” in the

Committee’s attempts to secure the provision of ongoing care for the Ward in their home.

19. The Committee also placed significant emphasis upon the fact that, subsequent to the

May 2019 judgment and the post-judgment hearing in June 2019, the HSE made an

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amendment to its homecare plan in its letter of 4th July, 2019 which the HSE itself

described as “a very significant amendment”. In these circumstances, the Committee

submitted that, contrary to the case made by the HSE, it was not until 4th July, 2019 that

a suitable homecare package was in fact put in place. The Committee stressed that this

occurred only after the four-day hearing. It is therefore wrong (so the Committee

submits) to suggest that the court had in any sense approved the HSE proposal made

prior to the four-day hearing in March 2019.

20. The Committee submits that, in substance, it succeeded in the proceedings in

circumstances where:-

(a) It was not until immediately before the hearing, that the HSE reversed its

“previously unshakeable position” that a residential placement was the only care

package that would be provided to the Ward;

(b) Secondly, the very significant amendment made by the HSE to its homecare plan

(as set out in its letter of 4th July, 2019) was only achieved after the hearing was

completed and the May judgment had been delivered. According to the Committee,

this: “went a considerable distance to addressing the Committee’s concerns with

the Homecare Plan previously offered by the HSE”.

21. Insofar as the DNR is concerned, the Committee submitted that, in the context of the

proceedings as a whole, this was a “relatively minor discrete issue” and was a very

straightforward one which did not require the wide-ranging inquiry which characterised

the remainder of the proceedings.

22. In light of the considerations summarised in paras. 18 to 21 above, the Committee

submitted that it is not necessary to embark on an analysis of the interests of justice in

order to make an award of costs in its favour. The considerations summarised in para. 16

above are therefore not relevant. The Committee submitted that it should be entitled to

costs by reference to the normal O.99 principles. Without prejudice to that submission,

the Committee argued that it is in the interests of justice that an award of costs should be

made in favour of the Committee. For this purpose, the Committee made the following

submissions:-

(a) If the ultimate level of care provided in July 2019 had been available at an earlier

point in the proceedings, the matter would have been resolved at a much earlier

stage and accordingly it would not have been necessary for the HSE to fund the

pre-existing homecare regime for as long as it actually did;

(b) The HSE was saved significant expenditure by the fact that, in the period between

2015 and 2018, the care of the Ward had been funded entirely privately out of the

proceeds of the settlement of her claim;

vulnerable persons such as the Ward should be protected. The Committee also

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argued that, in no sense, could the proceedings which took place here be described

as “unmeritorious”;

(d) In the event that the court was minded to rule against the Committee in respect of

its submission that it substantially succeeded in the proceedings, the result was, at

worst, “evenly balanced between the two parties”. Furthermore, the proceedings

were not initiated by the Committee but by the court in the exercise of its wardship

jurisdiction. In circumstances where the Committee was required to partake in the

proceedings initiated by the court, it could not be said that it had “lost” the case;

(e) It was also urged that, at no stage, did the Committee seek to compel the HSE to

spend beyond its means and that, in fact, the care plan proposed by it (as revised

in advance of the hearing) involved a similar level of expenditure to that proposed

by the HSE;

(f) With regard to the argument made by the HSE in relation to its statutory

responsibilities, the Committee submitted that the end result of the proceedings is

that the HSE will provide a service to the Ward that is eminently more suitable both

for her and her family, at approximately the same or a lower cost than the

residential care option initially proposed by the HSE. The Committee submitted

that it is “self-evidently” in the public interest that the HSE be required, in cases

such as this, to consider alternative care options rather than adhering inflexibly,

and without regard to the particular circumstances of the case, to inferior and more

costly packages of care.

Discussion

23. The first issue which requires to be addressed is whether O.99 r.1 applies to the very

unusual circumstances of this case. Insofar as relevant, O.99 r.1 provides as follows:-

“Subject to the provisions of the Acts and any other statutes relating to costs and

except as otherwise provided by these Rules:

(1) The costs of and incidental to every proceeding in the Superior Courts shall

be in the discretion of those Courts respectively.

(2) No party shall be entitled to recover any costs of or incidental to any

proceeding from any other party to such proceeding except under an order or

as provided by these Rules.

(3) …the costs of every action, question, or issue tried by a jury shall follow the

event unless the Court, for special cause, to be mentioned in the order, shall

otherwise direct.

(4) …the costs of every issue of fact or law raised upon a claim or counterclaim

shall, unless otherwise ordered, follow the event…”

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24. It will be seen that the provisions of O.99 r.1 are subject to any contrary statutory

provisions relating to costs. In the course of their written submissions, the HSE referred,

in this context, to the provisions of s. 169 (1) of the Legal Services Regulation Act, 2015

(“the 2015 Act”) which has introduced new statutory criteria to be taken into account.

However, that subsection was not commenced until 7th October, 2019 (i.e. after the

substantive matter had been concluded) and, in those circumstances, counsel for the

HSE, in the course of his very helpful oral argument, indicated that the HSE was not

seeking to rely on s. 169 (1).

25. Accordingly, it seems to me that I should proceed solely by reference to O.99 (to the

extent that it is applicable to this very unusual form of proceeding) and the relevant case

law. I must first consider whether O. 99 applies at all. In this context, it is clear from

O.99 r.1 (1) that it applies to the costs of “every proceeding” in the Superior Courts. The

same phrase is used in O.99 r.1 (2). No guidance is given in O.99 as to what is meant by

“every proceeding”. Order 125 of the Rules provides no definition of “proceeding”.

However, it appears from the decision of Kenny J. in the People (Attorney General) v. Bell

[1969] I.R. 24 that “proceeding” is to be given a wide meaning. In that case, an issue

arose as to whether O.99 r.1 of the 1962 rules (which was in similar terms to the current

version of O.99 r.1) was capable of applying to criminal proceedings before the Central

Criminal Court. Kenny J. held that it was and his decision was upheld by the Supreme

Court. In that case, Kenny J. had regard to a number of definitions in what was then

O.111 (now O.125) including the definition of the word “action” and the word “cause”. At

p. 33-34, Kenny J. said:-

“Order 111 (the interpretation clause) of the Rules of 1962 contains two definitions

of importance. The word ‘action’ is defined as meaning ‘a civil proceeding

commenced by originating summons…but does not include a criminal proceeding at

the suit of the Attorney General’; and the word ‘cause’ is defined as including ‘any

action, suit or other original proceeding between a plaintiff and defendant and any

criminal proceeding’. There is no definition of the word ‘proceeding’ but the two

definitions show that the word ‘proceeding’ is used in a wide sense, particularly as

the Rules of 1962 are stated to apply, where appropriate, to all proceedings in

causes or matters; and ‘causes’, by definition, include criminal proceedings”.

26. At p. 34, Kenny J. also referred to the decision of O’Byrne J. in The State (Minister for

Lands and Fisheries) v. Judge Sealy [1966] I.R. 107 where O’Byrne J. observed, at p. 34,

that:-

“It seems to me that, taking the Rules as a whole, the expression ‘any proceeding

in the Court’ must be held to include all proceedings of a civil or criminal nature

which the court has power to entertain, and is sufficiently wide to cover the case…”.

27. On appeal to the Supreme Court, the decision of Kenny J. was upheld by a majority of

four to one. At p. 51 of the report, Walsh J. (who gave the majority judgment) said:-

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“…I think the wording of Order 99, - r.1 is sufficiently clear …. ‘every proceeding’

can only be held to include all proceedings of a civil or criminal nature which are

within the jurisdiction of the High Court. In my view the case of the State (Minister

for Lands and Fisheries) v. Judge Sealy correctly decided that the words ‘any

proceeding in the Court’ contained in the then Rules of the Circuit Court were

sufficient to include all proceedings of a civil or criminal nature which the then

Circuit Court had power to entertain”.

28. Although it is clear from the decision in Bell that a wide meaning is to be given to the

word “proceeding” in the context of O.99 r.1, it has been suggested by Gibson J. in

Northern Ireland in Allen v. Redland Tile Co. (Northern Ireland) Ltd [1973] N.I. 75 at p.

78 that a:

“…proceeding is an act which has some degree of formality and significance and

which is done in furtherance of an action…something in the nature of a formal step

being either an application to the court or at least a step taken by a litigant in the

prosecution of the action, being a step which is required by the rules”.

29. I am of opinion that the hearing which took place before me in relation to the terms of the

proposed DNR and in relation to the appropriate mode of care for the ward well qualifies

as a “proceeding” within the meaning of O.99 r.1. While the matter was commenced in a

very informal way, the respective positions of the parties were very quickly formalised

thereafter in a very considered exchange of correspondence which set out, in some detail,

the case which each of them proposed to make and how they each believed the DNR

should be framed and how the future care of the Ward should be arranged. That process

was managed under the direction of Kelly P. and was ultimately the subject of a full

hearing before me at which sworn evidence was given by witnesses for both sides and

each of the witnesses was cross examined by the opposing side. In my view,

notwithstanding the relative informality of the way in which the proceedings were

commenced, the process was, very plainly, a “proceeding” within the meaning of O.99

r.1. As outlined above, despite the informal way in which the matter was listed before

the court, the process had a significant degree of formality once it was underway. The

process also had very considerable significance both for the ward (in terms of her care)

and for the HSE (in terms of the legal issue which was debated relating to the extent to

which (if at all) the HSE could be ordered to provide the level of care proposed by the

Committee for the ward). While the process did not involve any step required by the

rules, it did involve an application to the court and, as described above, a full hearing on

oral evidence before the court. It therefore well surmounts the relatively low hurdle laid

down in Allen v. Redland Tile and constitutes a “proceeding” for the purposes of O.99.

30. The next issue which arises is whether it can be said that the process described above

falls within the rubric of O.99 r.1 (3) or r.1 (4). Insofar as O.99 r.1 (3) is concerned, the

question which arises is whether it can be said that the costs which were incurred fall

within the ambit of “the costs of every action, question, or issue tried by a jury…”. The

costs in this matter clearly do not relate to an issue tried by a jury. Nor can it be said

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that the costs arise in relation to an “action” since that word is given a relatively narrow

meaning by O.125 as constituting a “civil proceeding commenced by originating summons

or in such other manner as may be authorised by these Rules…”. Given the informal way

in which the process commenced, it could not be said to constitute an “action” for the

purposes of O.99 r.1 (3). However, it seems to me that the process described above

undoubtedly falls within the ambit of the remaining element of O.99 r.1 (3) namely “the

costs of every … question…”. As outlined in para. 4 above, there were a number of

questions that fell for consideration in this process and therefore the requirements of this

element of O.99 r.1 (3) appear to me to be satisfied. In this context, I do not believe

that O.99 r.1 (3) is to be read as confined to a question tried by a jury. The punctuation

of the rule suggests that the reference to trial by a jury is confined to an “issue tried by a

jury”. The punctuation suggests that the phrase “every action, question, or issue tried by

a jury” is intended to be read disjunctively and that the reference to trial by jury applies

solely to the last of the three events enumerated in the sub rule. If there is any doubt

about that, then it seems to me that the provisions of O.99 r.1 (4) would cover the

present situation insofar as that sub rule provides as follows:-

“(4) The costs of every issue of fact or law raised upon a claim or counterclaim shall,

unless otherwise ordered, follow the event.”

There is no definition for this purpose of either a “claim” or of a “counterclaim” but, it

seems to me that there were claims made on both sides in these proceedings which

raised issue of fact and law and accordingly, even if I am wrong in my conclusion that

O.99 r.1 (3) applies, the matter would be covered by O.99 r.1 (4). Moreover, it is clear

from the decision of the Supreme Court in Dunne v. Minister for the Environment

[2008] 2 IR 775 that the principle that costs should follow the event is now regarded as a rule

of law. In that case, Murray C.J. said at p. 783:-

“The rule of law that costs normally follow the event, that the successful party to

proceedings should not have to pay the costs of those proceedings which should be

borne by the unsuccessful party has an obvious equitable basis...”]

31. Both O.99 r.1 (3) and O.99 r.1 (4) provide that costs are to “follow the event”. It has

been recognised, however, that there are some cases where the term “event” may be too

narrow for this purpose. For example, in Child and Family Agency v. O.A. [2015] IESC 52,

the Supreme Court, in the context of a District Court childcare hearing (which was

described as being, at least in part, inquisitorial) suggested that the use of the term “the

event” is not always satisfactory. There may well be a number of “events” and different

orders made as part of a continuum. In such circumstances the term “outcome” may be

a more appropriate criterion to use.

32. In light of my conclusions as to the applicability of the O.99 principles to this very unusual

case, I must now consider whether an “event” or an “outcome” can be identified for the

purposes of the application of those principles. If so, then costs must follow that event

unless there is a proper basis in line with the decision of the Supreme Court in Dunne v.

Minister for the Environment to depart from those principles. In considering this issue, I

Page 12 ⇓

am very conscious that the significant legal issue which arose for consideration was not

ultimately determined by me. Nonetheless, there was an outcome to the hearing. That

outcome involved a new regime of care for the ward in the home facility. The level of

manpower available under this new care regime was, however, significantly less than had

previously been in place. It was also significantly less than the revised level of care

proposed by the Committee in response to the HSE homecare proposal made in February

2019. Nonetheless, it was strongly urged by counsel for the Committee that the outcome

represented a significant success for the Committee. In the course of his oral

submissions, counsel for the Committee suggested that the event in this case is the

achievement of continued care for the ward at the home facility. He stressed that the

HSE had refused to countenance any form of homecare package in the period between

July 2018 (when the court first decided to list the matter before it) and February 2019

(when the homecare package was offered by the HSE for the first time). According to

counsel for the Committee, the HSE had only shifted its position following receipt of

Professor Burke’s report. Counsel for the Committee also argued that the HSE could not

succeed in any alternative argument based on the refusal of the Committee to accept the

homecare package proposed by the HSE in February 2019. Counsel highlighted in this

context the fact that the homecare package approved by the court in July 2019 contained

what he described as a very important amendment namely the provision for an additional

homecare assistant for a period of 30 days per anum. The second homecare assistant

was not offered by the HSE until July 2019 which was after the hearing which took place

in March 2019.

33. In response, counsel for the HSE stressed that the HSE had not only succeeded insofar as

the important issue of the DNR was concerned (following the reversal of the position on

the part of the Committee subsequent to the meeting of the Ward’s parents with

Professor Burke) but it had also succeeded in relation to the care plan. Counsel argued

that, if one were to look at the matter objectively, the care plan that was demanded by

the Committee is not the care plan that is now in place today following the order made in

July 2019. Counsel argued that, in those circumstances, if the conventional O.99

principles are applied, the position of the HSE has been vindicated and it would be entitled

to seek costs against the Committee although it did not propose to go that far. The HSE

is prepared to accept that no order should be made as to costs. Counsel for the HSE also

argued that, insofar as the Committee seeks to rely on the additional respite provision

agreed by the HSE in July 2019, this was done in response to the exchange of views

between the court and the parties (following the delivery of judgment) and was done as a

“gesture” by the HSE. Counsel argued that:-

“But we can’t be punished for doing that now in costs because that was a gesture in

an exchange with the Court. It is also something that was never sought …by the

Committee in the first place. It came up as an afterthought and I think that it is

not a significant matter, but I wouldn’t like it to be misunderstood. So I say it

would put us, the HSE, notwithstanding the unfortunate circumstances of the ward,

it would put us in a truly invidious positon if it is now to be seen that, in

circumstances where we have provided a home care package for a person, that we

Page 13 ⇓

are to be fixed with the costs of a hearing (a) that wasn’t … in any sense necessary.

But leaving that aside, we are not the moving party in the matter, we did not cause

any of the shortfall, we provided a service, we responded to the needs of the

person in public, and we have to be allowed to come in and out of wardship matters

where our managers, our nurses and doctors do not feel that they are going to

have to hesitate or pause because a significant legal cost will follow them if they do

anything positive in favour of a ward….”

34. In circumstances where I have formed the view (for the reasons outlined in paras. 24-31

above) that O.99 principles must be applied to these proceedings notwithstanding the

informal way in which they were commenced, I do not believe that it is appropriate for

me to take into account the fact that the HSE was not the moving party or that no form of

plenary or other proceedings were ever instituted against the HSE. It seems to me that,

subject to any considerations which may subsequently arise should it be necessary to

consider whether there are any discretionary factors that would justify a departure from

the usual rule, I must approach the matter the same way as the court would approach

any application for costs under O.99. This reinforces my view that I must seek to identify

whether there is an “event “or “outcome” by reference to whether the issue of costs can

be determined.

35. As outlined above, both parties have sought to characterise themselves as the successful

party. The HSE maintains that it should be seen as having succeeded in circumstances

where the care plan ultimately put in place in July 2019 is substantially the same as the

care plan that was proposed by it in February 2019 in advance of the four day hearing.

On the basis of that scenario, the relevant “event” or “outcome” is the court’s approval of

the care plan as revised in July 2019.

36. On the other hand, the Committee has equally portrayed itself as the successful party in

that, on its view, it has succeeded in securing the continuation of home care for the ward

(albeit on less generous terms than it would wish). The Committee maintains that the

homecare plan put in place in July 2019 is not the same as that proposed in February

2019 in that it now includes a significant respite provision through the mechanism of the

provision of a second care assistant on a 24 hour basis for a period of 30 days, annually.

While counsel for the HSE has sought to characterise that addition to the homecare plan

as a “gesture”, counsel for the Committee has highlighted the language used in the letter

of 4th July, 2019 where it is described as “a very significant amendment to the Comfort

Care Package…”. Counsel for the Committee urges that, in those circumstances, the HSE

cannot plausibly suggest that the costs of the four day hearing in March could have been

avoided. In my view, the question whether the costs of the hearing could have been

avoided requires separate consideration and will be addressed further below once I have

reached a determination as to whether, absent consideration of that question, the

Committee should be entitled to some level of costs.

37. In some cases, it is a straightforward matter to identify a relevant event or outcome by

reference to which success can be measured. In this case, however, the issue is not

Page 14 ⇓

straightforward. It is unsurprising that both sides have claimed to be the successful

party. Both parties have succeeded to some extent. The HSE has succeeded fully in

relation to the DNR issue. While the terms of the DNR proposed by the HSE were

ultimately agreed by the Committee, that only occurred in the period immediately before

the hearing and was only formalised in the course of the hearing. However, that issue,

although of very considerable importance, did not occupy much of the time spent on the

hearing of the case. In fact, the bulk of the hearing related to the the appropriate care

regime that should be put in place for the future care of the Ward.

38. As noted above, shortly before the hearing, the HSE changed its position. Contrary to the

case which it had made up to February 2019, the HSE proposed, for the first time, a

homecare package for the Ward as an alternative to a placement in the Community

Nursing Unit. As a consequence of this change of position on the part of the HSE, there

was much less, in the way of disagreement between the parties, in the course of the

hearing, than would otherwise have been the case. There was, however, significant

debate about the level of care that would be required for the Ward were homecare to be

continued. Under the proposal made by the HSE in the weeks prior to the

commencement of the hearing, the parents of the Ward would have a much more “hands

on” role in the day to day care of the ward than under the proposal made by the

Committee (which would have seen two carers being available at all times over a 24 hour

period).

39. Ultimately, what has been put in place, following the judgment in May 2019 and the

subsequent hearing in June 2019, is a homecare package which is substantially similar to

that proposed by the HSE in February 2019 but with the addition of a second healthcare

assistant on a 24 hour basis for 30 days per anum. Crucially, under that arrangement,

the ward will continue to be maintained in her home. This therefore represents a

significant outcome for the Committee and the ward in terms of her future care which is

quite different to the Community Nursing Unit placement originally envisaged by the HSE.

To that extent, the Committee has succeeded. However, it is, at best, a partial success.

The homecare package which has been put in place is not the homecare package for

which the Committee argued. To that extent, the HSE has also achieved a level of

success in the proceedings. It has successfully resisted the imposition of a regime which

would require it to fund the presence of two homecare assistants on a 24 hour basis 365

days of the year.

40. The difficulties which arise in cases where neither side is wholly successful have been

considered in a succession of cases commencing with the decision of Clarke J. (as he then

was) in Veolia Water UK PLC v. Fingal County Council (No. 2) [2007] 2 IR 81. In that

case, Clarke J. indicated that it is appropriate to base the award of costs on an

assessment of how much of the hearing might be said to be attributable to the issues

upon which each party succeeded. In that case, he ultimately concluded, on the facts,

that an analysis of the time spent on the issues in question resulted in a “roughly equal

allocation of time in favour of both parties”. In those circumstances, he came to the

conclusion that the justice of the case would be met by making no order as to costs.

Page 15 ⇓

41. In some of the authorities which have arisen since Veolia, the courts have carried out an

exercise as to the time spent on the issues on which the respective parties were

successful and awarded costs by reference to the result of that analysis. Thus, by way of

example, if a hearing had taken six days and four of those days were spent on an issue in

which the plaintiff was successful while two of the days were spent on an issue on which

the defendant was successful, the plaintiff might be awarded the costs of a two day

hearing (after essentially allowing a set off of two days’ costs for the defendant against

four days’ costs for the plaintiff).

42. In other cases, it is not always feasible to make precise mathematical calculations of the

kind outlined in para. 40 above. In such cases, the courts have, sometimes, awarded a

party (who has been partially successful) a certain proportion of the costs. Thus, for

example, in Wright v. HSE [2013] IEHC 363, Irvine J. awarded the plaintiff 65% of the

costs. She did so even so even though she found that no more than 20% of the evidence

in that case was spent on the issue on which the plaintiff was ultimately successful. The

judgment of Irvine J. in that case and other relevant case law on this issue has recently

been very helpfully summarised and considered by Barr J. in Anderson v. Birthistle

[2019] IEHC 302. In that case, Barr J. held that the trial was prolonged to some extent by virtue

of the investigation of an aspect of the plaintiff’s case which ultimately failed. He held

that, in order to do justice between the parties, some deduction had to be made from the

costs recoverable by the plaintiff to take account of the fact that the hearing was

prolonged to that extent. He highlighted the decision of Irvine J. in the Wright case

where the plaintiff was awarded 65% of her costs notwithstanding that only 20% of the

time of the trial had been spent dealing with the issue on which the plaintiff was

successful. He also drew attention to the decision of Peart J. in the Court of Appeal in

Naylor v. Maher [2018] IECA 32 where the plaintiff sought to challenge a will on a

number of grounds including undue influence. The plaintiff failed on that issue but

succeeded on a different point based on estoppel. Although the undue influence issue

represented 50% of the plaintiff’s case, Peart J. came to the conclusion that he should be

awarded 75% of his costs. In Anderson, Barr J., having considered these authorities,

came to the conclusion that the plaintiff there should recover 80% of her costs.

43. I am also aware that the Supreme Court, having determined an appeal from the Court of

Appeal in relation to taxation of costs issues in Sheehan v. Corr [2017] 3 IR 252 (in

which the plaintiff had succeeded in part only), subsequently awarded the plaintiff 70 %

of her costs.

44. In the present case, there was undoubtedly time taken up at the hearing in addressing

the case made by the Committee that there should be two healthcare assistants available

on a 24 hour basis to care for the Ward. The Committee failed on that issue. However, I

take the view that the Committee did succeed to some extent in that it secured for the

Ward a continuation of her care at her home albeit on new terms. As noted above, it

seems to me that I should deal separately with the issue as to whether the Committee

should be deprived of any costs as a consequence of the failure to take up the offer made

by the HSE (following Professor Burke’s report) in February 2019. In addition, the

Page 16 ⇓

Committee failed on the DNR issue. At the start of this process, the Committee sought to

establish that the DNR should be in the terms summarised in para. 3 above. The

Committee subsequently abandoned that case and agreed to the terms of the DNR as

proposed by the HSE. I am of opinion that, in those circumstances, the Committee must

be treated as having failed on the DNR issue.

45. I regret to say that I do not believe that it is feasible in this case to attempt to carry out a

scientific analysis of the extent of the hearing that was occupied with evidence on issues

on which the Committee failed. It would be particularly difficult to do so in this case in

circumstances where some of the evidence at the hearing (inevitably) was concerned with

historical issues. Both sides clearly wished to ensure that the court should be fully

apprised of the reasons why they had adopted positions in the past. For example, the

HSE spent some time, in the course of the evidence, in dealing with the suitability of the

Community Nursing Unit as a place of care for the Ward.

46. I therefore do not believe that I can carry out a scientific analysis of the kind envisaged

by Clarke J. in Veolia. It seems to me that the best I can do is to take the more rough

and ready approach which has been adopted by the High Court in Wright and in Anderson

and by the Court of Appeal in Naylor and also by the Supreme Court in Sheehan v. Corr. I

am of the view that, in order to do justice between the parties, some deduction has to be

made from any costs recoverable by the Committee to take account of the fact that the

hearing was undoubtedly prolonged by the continued maintenance of the claim by the

Committee to round the clock care by two homecare assistants. I must also bear in mind

that the result falls significantly short of what was sought by the Committee. It seems to

me that the outcome is best characterised as a partial success on the issue of homecare

by the Committee. In addition, I must have regard to the fact that the Committee has

fully failed on the DNR issue. Taking all of these matters into consideration, it seems to

me that, if the Committee is to be awarded costs in these proceedings (and the ultimate

decision on this issue will depend upon the view I form in relation to the refusal of the

Committee to accept the offer made by the HSE in February 2019) the Committee should

only be entitled to recover a proportion of its costs of the proceedings. In my opinion,

viewing the matter in the round and bearing in mind the considerations outlined above,

the appropriate proportion is 60%. In addition, however, it seems to me that I should

also disallow in its entirety the costs of one day of the four day hearing which took place

in March 2019. This is to reflect the fact that at least some of the evidence which was

heard by me during the course of the hearing related to the DNR issue on which the

Committee has wholly failed and a more significant amount of time was spent on the case

made by the Committee for round the clock care by two carers on a 365 day basis (on

which the Committee also substantially failed).

The impact of the offer made by the HSE in February 2019

47. If the ultimate decision in this case had been to approve, without any significant

modification, the proposal made by the HSE in February 2019, I would have no hesitation

in confining the award of costs to the Committee to the period up to the date of the HSE

proposal. However, I have come to the conclusion that it would not be appropriate to

Page 17 ⇓

take that course in circumstances where a significant modification was in fact made to

that proposal in July 2019 in response to the observations made by me during the course

of the post-judgment hearing which took place in June 2019. In my view, the

modification which was made in June 2019 represented a significant change to what had

been proposed previously. In the course of the post-judgment hearing which had taken

place in June 2019, I had indicated in strong terms to the HSE that I believed that serious

consideration should be given to providing some level of respite care to assist the parents

of the Ward on whom a significant burden now lies under the care package proposed by

the HSE. They would essentially have to be available virtually 24 hours a day to assist in

the day to day care of the ward. In taking this important adjustment to the care package

into account, I am acutely conscious of the submissions made by counsel for the HSE that

the HSE should not be penalised in costs as a consequence of the “gesture” made by it in

response to the appeal which I made to the HSE in the course of the post-judgment

hearing in June 2019. I fully acknowledge the force of the submission made by counsel

for the HSE that its officers may hesitate in the future to offer (by way of gesture) to

provide an additional resource if any such offer is capable of having costs consequences

for the HSE. It would be highly undesirable that any decision of the court should have

that consequence. However, having very carefully reflected on the issue, I do not believe

that it is correct to characterise the modification made by the HSE in July 2019 as a

gesture of that kind. While I fully acknowledge that the modification was made with

goodwill on the part of the HSE, it was not made spontaneously but was prompted by the

serious concerns which I expressed in the course of the post-judgment hearing in June

2019. In practical terms, it was a modification that was extracted from the HSE as a

consequence of the concerns expressed by me. Had this modification not been made, it

would, in my view, have been necessary for me to resolve the legal issue as to whether

the HSE could be compelled to provide a homecare package in the particular

circumstances of this case. While the HSE may not have considered itself to be at any

significant risk in relation to the determination of that issue, it is inconceivable that the

HSE thought it was at no risk of an adverse finding on the issue. In those circumstances,

I have come to the conclusion, in the very particular circumstances of this case, that it is

appropriate for the court to have regard to the modification that was made. Given the

significance of the modification, I believe it is both reasonable and appropriate to take the

view that what was ultimately offered in July 2019 represents a significant improvement

over the offer previously made in February 2019. In those circumstances, I do not

believe that I could reasonably form the view that the Committee should be deprived of a

costs order in this case by reason of its failure to accept the offer made by the HSE in

February 2019 a number of weeks before the hearing commenced on 5th March, 2019.

Other considerations?

48. In light of the views which I have reached on the basis of the application of O.99

principles, I do not believe that it is necessary to address any of the discretionary factors

that might arise in accordance with the decision of the Supreme Court in Dunne v.

Minister for the Environment [2008] 2 IR 775. That issue was addressed by the HSE

solely in the context of resisting an order for costs against it in the event that the court

were to conclude, on the application of O.99 principles, that the HSE had been the

Page 18 ⇓

successful party. The HSE argued that, in those circumstances, there would be no basis

on which to award costs against it by reference to the discretionary factors identified by

the Supreme Court in that case. It was in that context that the HSE had made

submissions in relation to the matters summarised in para. 16 above. Having regard to

my view that the Committee is entitled to costs on O.99 principles, it is unnecessary to

consider these additional arguments on the part of the HSE (as summarised in paragraph

16 above).

Conclusion

49. For all of the reasons outlined above, I have come to the view the Committee should be

entitled to 60% of its costs of these proceedings save that no costs whatever should be

allowed for one day of the four day hearing which took place in March 2019.

Result: The Committee was entitled to 60 per cent of its costs in the proceedings save that there was no order as to costs made for one of the days of the four day hearing which took place in March 2019.