Wardship-discharge deadline ‘unlikely to be met’
A leading practitioner in mental-health and capacity law has said that it is unlikely that all individuals in wardship will be discharged by the deadline of April next year.
Áine Hynes SC (partner, St John Solicitors) was speaking at the annual conference of the Law Society’s Litigation Committee in Blackhall Place (16 October).
She also told the event that, while the was ambitious and very broad in scope, its purpose was laudable and practitioners had to try to manage it in the best way possible.
The 2015 act ended the long-standing wardship system and replaced it with a tiered decision-making framework.
Applications to Circuit Court
Hynes was updating solicitors on making Circuit Court applications under the act for people who need support to manage their affairs.
She told the event that she expected a significant rise in such applications, adding that more than 80% were linked to the nursing-home support scheme.
The solicitor also said that multiple applications to the Circuit Court were sometimes needed, generally to help people to get access to funds for nursing homes, as ‘blanket’ applications for every aspect of a person’s life were not allowed.
Under the act, the court can appoint independent decision-making representatives (DMRs) for those judged to be without the capacity to deal with a particular issue, and where no family member is suitable or willing to take on the role.
Independent DMRs
Hynes said solicitors appointed as independent DMRs were finding it “very challenging”, as it was sometimes difficult for them to access the necessary information.
It was easier for family members to access the information and preferable for family members to be appointed as DMRs if the court determined that they were suitable.
She noted that, under the current system, a relevant person’s spouse, partner, and children over 18 had to be notified under the application to appoint a DMR, a system she said could be “quite difficult” in cases where children were estranged or could not be contacted.
The solicitor added that the Law Society was asking for a change in the legislation so that not all children would have to be notified.
Collective redress
The conference also heard that the prohibition on third-party funding of litigation in Ireland could be a barrier to effective collective redress for consumers.
Rowena McCormack (partner, DAC Beachcroft) was discussing the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023, which allows only designated ‘qualified entities’ (QEs) to bring class actions.
She pointed out that, while QEs could charge a small fee of €25 to consumers that opted into redress proceedings, that would require 10,000 people to fund litigation of €250,000, which may still fall short of the costs involved in complex cases.
The solicitor said that crowdfunding could be a viable option, following a High Court decision in . The court did not strike out the proceedings solely on that basis, suggesting that charitable crowdfunding may be permissible under certain conditions.
McCormack also referred to the first case taken under the 2023 act, by the Irish Council for Civil Liberties (ICCL) against Microsoft, saying that the tech giant was reportedly asking for more details of the source of ICCL’s funding.
The solicitor concluded that, while the 2023 act was a “powerful new tool” for consumer protections, there was concerns about the viability of legal actions for QEs, especially in the absence of reform to Ireland’s litigation-funding regime.
Planning-and-environment court
In an update on litigation-related court developments, the High Court President Mr Justice David Barniville said that the list for the court’s specialist planning-and-environment division had doubled since it was set up in October 2023.
He said that he planned to assign at least one of the next batch of new High Court judges to the court – there are currently three judges sitting.
He also told solicitors that professional disciplinary cases were “a hugely growing area” for the court.
Mr Justice Barniville also said that the process of discharging all wardships by the April 2026 deadline had been “extremely challenging” and acknowledged that not all may be discharged by that date.
Also at the conference, personal-injuries lawyer Stuart Gilhooly SC discussed recent cases in the sector, as well as the potential shape of planned legislation on insurance reform.
Graham Kenny (principal, Graham Kenny Solicitors) addressed the event on AI and litigation, while there were also updates from the Courts Service and Law Society Psychological Services.