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Court of Appeal dismisses appeal and upholds decision of the High Court directing the appellants to pay 6/7ths of the respondents’ costs following their challenge to the registration of an Enduring Power of Attorney, on the grounds that: (a) the appellants’ delay and the manner of their approach to raising an issue in relation to a share transaction as having been improperly brought about by one of the respondents was unsatisfactory; (b) the trial judge was correct in determining that, as a matter of principle, no special rules in relation to costs should apply where an objection as to suitability is raised and adversarially contested in the case of an Enduring Power of Attorney; (c) there was evidence before the trial judge which, on balance, entitled him to conclude that the contention that the respondents as proposed attorneys were unsuitable was not reasonable, and that in all the circumstances the litigation was not conducted bona fide; (d) the trial judge considered the sequence of events and correctly identified the relevant legal principles when it came to the Calderbank letter; and (e) the trial judge properly exercised his discretion in making the order that he did.
Whelan J (nem diss): Appeal of a decision of the High Court directing the appellants to pay 6/7ths of the respondents’ costs - the substantive part of the order registered an enduring power of attorney (“EPA”) created by the mother of all the parties to the application (“the donor”), pursuant to the Powers of Attorney Act 1996 - no appeal was taken in relation to the substantive order - costs of legal proceedings - how the court should award costs in an application for an EPA - the donor executed an instrument creating an EPA and appointing two of her five children, the respondents, to act as her attorneys should she thereafter become mentally incapacitated - the respondents issued a notice of intention to apply to register the EPA following a deterioration in the donor’s mental condition - the two appellants objected to the registration on the grounds were each unsuitable to be the donor’s attorneys - "Calderbank Letter" - Order 99 of the Rules of the Superior Courts - s. 169 of the Legal Services Regulation Act 2015 - whether EPA proceedings are civil proceedings within the meaning of s. 169 of the LSRA 2015 - the respondents had sent a Calderbank letter on 5 February 2020 which proposed registering one of the respondents alone as attorney and that the parties would bear their own costs - the substantive order directed that the EPA registered - the trial judge noted that offer was “significantly better” for the appellants than what was actually obtained from the court - the 1996 Act makes no express provision as to costs - whether special rules in relation to costs involving an application for the registration of an EPA apply - appeal dismissed - decision of the High Court upheld.
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
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