harp graphic.
THE HIGH COURT
[2025] IEHC 317
[Record No. 2020 2641 P]
BETWEEN
PETER McEVOY AND LINDA McEVOY
PLAINTIFFS
AND
DAVID TURNER PRACTISING UNDER THE STYLE AND TITLE OF DAVID TURNER AND CO SOLICITORS
FIRST NAMED DEFENDANT
AND
JAMES McSWEENEY PRACISTING UNDER THE STYLE AND TITLE OF JAMES McSWEENEY SOLICITORS
SECOND NAMED DEFENDANT
JUDGMENT of Ms. Justice Marguerite Bolger delivered on the 30th day of May 2025
1. The primary application before this Court is that of both defendants to strike out the plaintiffs' proceedings pursuant to O. 19, r. 28 of the Rules of the Superior Courts as disclosing no reasonable cause of action or, alternatively, to dismiss the proceedings pursuant to the court's inherent jurisdiction as unsustainable, bound to fail, an abuse of process, frivolous or vexatious. There are other motions in relation to the proceedings, including one to amend the title following the death of the first named plaintiff and the plaintiff's motion for judgment in default of defence.
2. For the reasons set out below, I am striking out these proceedings pursuant to O. 19, r. 28 as failing to disclose any reasonable cause of action. The other motions, therefore, fall away with these proceedings.
Background
3. These are professional negligence proceedings brought by plenary summons dated 8 April 2020 against the two defendants, both of which are firms of solicitors which were instructed by the plaintiffs on behalf of their respective wife and mother in separate proceedings. An analysis of the within proceedings requires some understanding of the earlier medical negligence proceedings issued by the first named defendant in April 2014 on behalf of the late Mrs. McEvoy who died on 1 April 2021. One set of proceedings were issued against the Mater Hospital and two named doctors, and a second set of proceedings were issued against Beaumont Hospital and one named doctor. Both proceedings arose from the treatment of the late Mrs. McEvoy on 9 May 2012 when she suffered a stroke and was admitted to the Mater Hospital, transferred to Beaumont and then transferred back to the Mater. The late Mrs. McEvoy sustained an acquired brain injury on 9 May 2012 and, from then until her death in April 2021, she lived in specially adapted facilities where she required 24-hour care.
4. As a result of the manner in which they believed that the late Mrs. McEvoy's medical treatment was inadequate and negligent, the plaintiffs instructed the first named defendant on Mrs. McEvoy's behalf to issue personal injury proceedings, which they did on 17 April 2014 and 6 May 2014. The first named defendant did not serve those proceedings which he said was because he did not have the requisite medical report.
5. There is a dispute on the facts as to whether the plaintiffs or the first named defendant was responsible for locating an expert medical witness. There was email correspondence in April 2014 from the second named plaintiff to the first named defendant about a US expert, very shortly before the time for serving the proceedings expired. In that email, the second named plaintiff stated that a named US doctor had agreed to receive a request from the first named defendant with the relevant information and a request to prepare a report. The first named defendant responded by return email in which he said, "Great news. Well done". In June 2014, the second named plaintiff contacted the first named defendant stating that if the proceedings were not served in their then format (i.e. without an expert report) that the plaintiff would secure alternative representation. The second named defendant replied, confirming that the files would be available the following Monday. The files were collected shortly thereafter, and the plaintiffs proceeded to instruct the second named defendant. The first named defendant heard nothing further from the plaintiffs until he received a letter of claim from the plaintiffs in relation to the within proceedings on 1 April 2021. That letter referred to the plaintiffs' "capacity as spouse and daughter of the above named Eileen McEvoy... and as her nominated Attorneys pursuant to Enduring Power of Attorney dated 14th August 2012". The letter claimed that the first named defendant had been professionally negligent in failing to obtain expert reports, failing to serve the proceedings and failing to apply to the Master of the High Court to renew the proceedings. The letter made no mention of any alleged failure to seek to register the enduring power of attorney that the late Mrs. McEvoy had executed in August 2012.
6. The second named defendant was instructed by the late Mrs. McEvoy, via the plaintiffs, in June 2014. The second named plaintiff asked him to renew the proceedings by way of an application to renew the summons that had already been served. This was not done, and the proceedings were not served. Again, there is a factual dispute between the second named plaintiff and the second named defendant in relation to obtaining a suitable expert report and what steps were required to be taken to allow the proceedings to be served. The second named plaintiff averred in the within application to having, since then, secured expert medical evidence from two UK doctors. It would appear that the US doctor with whom the second plaintiff had apparently corresponded in April 2014 is not the second named plaintiff's current expert medical evidence.
The within proceedings and the plaintiffs' status therein
7. The plaintiffs are litigants in the person. Their Statement of Claim sets out the following in describing themselves and the causes of action that they claim to have therein arising from the manner in which the defendants, each of them, provided their professional services to the late Mrs. McEvoy:
"5. The First Named Plaintiff herein is the surviving spouse of Mrs Eileen McEvoy (hereinafter: "the Claimant"), of 107 The Stiles Road, Clontarf, Dublin 3, Retired Post-Primary School Teacher, date of birth 20th July 1939 and date of death 1st April 2021. The First Named Plaintiff herein was appointed sole Executor by the Claimant of her Estate in her Last Will and Testament executed 26th January 2012 and is an Attorney appointed by the Claimant in Enduring Power of Attorney created by the Claimant pursuant to the provisions of the Powers of Attorney Act 1996 on 14th August 2012.
6. The Second Named Plaintiff herein is the surviving daughter of the aforesaid Claimant and is an Attorney appointed by the Claimant in Enduring Power of Attorney created by the Claimant pursuant to the provisions of the Powers of Attorney Act 1996 on 14th August 2012.
7. The Claim of the First Named Plaintiff is as the Executor of the Estate of the Claimant and the Legal Personal Representative of the Claimant and Attorney appointed by the Claimant in Enduring Power of Attorney Act 1996 on 14th August 2012 and the Claim of the Second Named Plaintiff is as Attorney appointed by the Claimant in Enduring Power of Attorney created by the Claimant pursuant to the provisions of the Powers of Attorney Act 1996 on 14th August 2012."
8. The Statement of Claim refers to the late Mrs. McEvoy as "the Claimant". At para. 30 it refers to the "Claimant" having suffered "hardship, inconvenience, loss and damage". Under 'Particulars of Damage' it is stated that the first and second named plaintiffs claim "such damages as the Claimant would have been entitled to from [the respondents in Mrs. McEvoy's personal injury proceedings] had her claims not been statute barred" and "damages for the delay in the recovery of the said compensation and the loss and inconvenience which was occasioned to the Claimant, together with damages for the exacerbation of the stress and depression already suffered by her which occurred when her claims became statute barred". The 'Particulars of Loss and Damage' set out the needs of the Claimant, including 24-hour care and refers to her "severe distress". The 'Particulars of Special Damage' list a number of items including "Living Adaptation", all of which are "[t]o be ascertained". There is no evidence before this Court that any such living adaptation expenses were discharged by or on behalf of the late Mrs. McEvoy. The Statement of Claim refers to the late Mrs. McEvoy having resided in hospital and a community care setting from the date on which she first became unwell until her death.
9. The reference in the Statement of Claim to the plaintiffs being nominated attorneys seems to arise from the late Mrs. McEvoy having executed an Enduring Power of Attorney on 14 August 2012, with the assistance of her then solicitors, LKG Ballagh. The documentation refers to Dr. O'Rourke, her then treating physician, having certified at that time that the late Mrs. McEvoy "had the mental capacity, with the assistance of such explanations as may have been given to [her], to understand the effect of creating the Power". In that Enduring Power of Attorney, the late Mrs. McEvoy named her husband and daughter, the within plaintiffs, and her other daughter, as her attorneys. That enduring power was never registered under s. 10 of the Powers of Attorney Act 1996. Therefore, neither the plaintiffs nor Mrs. McEvoy's other daughter were ever appointed as her attorneys with the powers that would have been conferred on them to take steps on her behalf, including in relation to legal proceedings.
10. The plaintiffs, in the within proceedings, plead negligence against the first named defendant for not having taken steps to register the Enduring Power of Attorney. The second named plaintiff averred in her replying affidavit in the within application, to the first named defendant having requested all documentation in relation to the enduring power of attorney in 2013. The documentation was furnished to him by the second named plaintiff who obtained it from LKG Ballagh. The late Mrs. McEvoy did not terminate her engagement of that firm, at least between 2013 and 2021, as is made clear by the second named plaintiff averring, in the within application, to having instructed Mr. Ballagh to act on their behalf in making an application for registration of the Enduring Power of Attorney in 2020 (at para. 17 of the second named plaintiff's affidavit, sworn on 30 November 2023). In February 2021, Mr. Ballagh wrote to the second named plaintiff explaining that the Enduring Power of Attorney had not been registered because "following discussions with the caring facility, no medical practitioner supported the fact that your mother was without sufficient mental capacity to make her own decisions" (averred to by the second named plaintiff at para. 17 of her affidavit of 30 November 2023).
11. The second named plaintiff, in her oral submissions to this Court, sought to challenge the veracity of Mr. Ballagh's conclusions by reference to earlier medical evidence that had confirmed the late Mrs. McEvoy's inability to make decisions about her care or to sign her name. That medical evidence does not challenge the veracity of Mr. Ballagh's position about what evidence he was able to secure, or at least to the extent that this Court could set it at nought or find that the Enduring Power of Attorney could have been registered in spite of Mr. Ballagh's findings and advices. In any event, it seems that the first occasion on which steps were taken to register the Enduring Power of Attorney since the second named plaintiff had sent documentation relating to the matter to the first named defendant in 2013, was in 2020 when the second named plaintiff asked Mr. Ballagh to apply for registration.
12. There is no basis to the plaintiffs' allegation of professional negligence against the first named defendant in relation to the non-registration of the Enduring Power of Attorney during the time the defendant was acting for the late Mrs. McEvoy. The fact that that allegation was made does not save these proceedings from failing to disclose any reasonable cause of action against the defendants or at least any reasonable cause of action on the part of the plaintiffs.
13. The plaintiffs were never appointed as attorneys for the late Mrs. McEvoy and their being named on the Enduring Power of Attorney that was signed by the late Mrs. McEvoy in August 2012, gives them no greater legal status in relation to the late Mrs. McEvoy than the plaintiffs would have had anyway as her spouse and daughter respectively.
14. Neither did the first named plaintiff have any relevant status by reference to his appointment as executor in the last will and testament of the late Mrs. McEvoy. Neither did the second named plaintiff have any relevant status by reference to the will of the first named plaintiff who died on 1 October 2022. These proceedings were brought by the plaintiffs in what they claimed was their capacity as the attorneys of the late Mrs McEvoy and were not brought by or on behalf of Mrs McEvoy's estate. Any claim on behalf of Mrs. McEvoy's estate is now statute barred, which means that there is no amendment to these proceedings that would save them from the frailties from which they suffer as proceedings brought by two persons who were merely close relatives and possibly agents of the person on whose behalf the defendants acted in personal injury medical negligence proceedings. The plaintiffs have no cause of action in the within proceedings simply because they were closely related to someone who had brought medical negligence proceedings, or named as attorneys in an unregistered Enduring Power of Attorney or as her executor or because they instructed the defendants on her behalf or because they may have been named as beneficiaries in her will.
15. In summary, the within proceedings of professional negligence, in relation to services provided to the late Mrs. McEvoy, were not brought by the late Mrs. McEvoy or by attorneys pursuant to a registered Power of Attorney or by the estate. That renders them fatally devoid of any reasonable cause of action arising from the manner in which the defendants represented the late Mrs. McEvoy in her personal injury proceedings.
Section 7 of The Civil Liability Act 1961
16. If I am wrong on the above and the plaintiffs are entitled to claim damages from the defendants for alleged professional negligence in their representation of the interests of the late Mrs. McEvoy, then the value of that claim for damages would reflect the value of the medical negligence proceedings that were not issued.
17. Section 7 of the Civil Liability Act 1961 provides:
"Survival of certain causes of action vested in deceased person.
7.—(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.
...
(2) Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness."
There is ample authority that a claim for damages for pain and suffering (as the late Mrs. McEvoy's proceedings essentially were) does not survive the death of the plaintiff (Doyle v. Dunne [2016] IESC 68).
18. The second named plaintiff in the within application, primarily in oral argument, tried to suggest that the claim for special damages in the medical negligence proceedings would have included home adaptation costs, even though no such item of special damage was ever identified and there was no evidence put before the Court of any such expense having been incurred by or on behalf of the late Mrs McEvoy. There has never been any attempt to cost, validate or vouch any such claim and, even if one exists, despite the lack of any evidence that the late Mrs. McEvoy ever returned to her home from when she suffered a prior brain injury in 2012 until she died in 2021, any such claim would have to have been brought by her estate. Her estate is now statute barred from instituting such a claim, if one ever existed. No amendment to the within proceedings can save them from the fact that any claim the late Mrs. McEvoy had either died with her in 2021 or has become statute barred since her death.
Decision
19. I allow the defendants' application to strike out the proceedings for failing to disclose any reasonable cause of action and/or pursuant to the inherent jurisdiction of the Court on the ground that the plaintiffs' claims are unsustainable and bound to fail.
Indicative view on costs
20. My indicative view on costs is that the defendants, having succeeded in having the proceedings struck out on the grounds as set out above, are entitled to their costs of these applications and of the entire proceedings. I will put the matter in at 10.00am on 19 June 2025 to hear the parties further in relation to costs and any other orders that may require to be made. If either party wishes to make written submissions in advance of that date, they should be filed with the Court at least 48 hours in advance of the matter coming back before the Court.
The second plaintiff represented herself.
Counsel for the first named defendant: Gary McCarthy SC and Stephen Devine
Counsel for the second named defendant: James Burke BL