High Court strikes out EPA registration proceedings and awards costs to parties from the deceased's estate.

REDACTED

THE HIGH COURT

[2026] IEHC 111

Record Number: EPA 245/2024

IN THE MATTER OF THE POWERS OF ATTORNEY ACT 1996

AND IN THE MATTER OF AN APPLICATION FOR REGISTRATION OF

AN ENDURING POWER OF ATTORNEY EXECUTED BY HM ON 10TH

JULY 2017

BETWEEN

CM

APPLICANT

AND

AV

RESPONDENT

JUDGMENT of Mr Justice David Barniville, President of the High Court, delivered on the 26th day of February 2026 Table of Contents

1. Introduction .............................................................................................................. 3

2. Summary of Decisions ............................................................................................. 5

3. Relevant factual and procedural background ....................................................... 7

4. The application for registration ............................................................................ 12

5. The death of the Donor: mootness ........................................................................ 14

6. The dispute on costs ............................................................................................... 15

7. Submissions on costs .............................................................................................. 24

(a) The Attorney ................................................................................................ 24

(b) The Objector ................................................................................................ 27

8. Further opportunity to resolve costs dispute....................................................... 33

9. Decision on costs ..................................................................................................... 34

(a) Statutory provisions..................................................................................... 34

(b) Mootness: Independent of actions of parties ............................................. 38

(c) EPA registration application costs ............................................................. 40

(d) Conclusions on the legal issues .................................................................. 45

(e) Conclusion on the quantum of costs .......................................................... 46

10. Orders to be made ................................................................................................ 49

1. Introduction

1. This judgment addresses the question of who should bear the costs of a contested application brought by an attorney, under an Enduring Power of Attorney created under the Powers of Attorney Act, 1996 (the “1996 Act”), for the registration of the instrument creating the enduring power, where the application has become moot due to the death of the donor prior to the determination of the application.

2. The application for registration of the instrument in this case was brought by one of the adult children of the donor (the “Donor”) who was appointed to act as his attorney (the “Attorney”). The application for registration was the subject of an objection, filed in response to the notice of intention to apply to register the instrument, by another of the Donor’s adult children, who was one of the notice parties named by the Donor (the “Objector”). The filing and maintaining of that objection meant that it was necessary for the Attorney to bring an application under s. 9 of the 1996 Act by way of notice of motion to the High Court for registration of the instrument. That application was hotly contested by the Objector. A number of detailed replying affidavits were sworn by the Objector in response to the application and were in turn responded to by the Attorney.

3. The Objector maintained in her objection and in the affidavits sworn in response to the motion seeking registration of the instrument that the Attorney was unsuitable to be the Donor’s attorney and that fraud or undue influence was used to induce the Donor to create the enduring power. Those serious allegations were strenuously disputed by the Attorney in the various affidavits which she swore in connection with the application for registration.

4. The application was listed on a number of occasions before the High Court in the first half of 2025. The Objector brought a motion seeking extensive discovery of documents which was listed to be heard by the High Court (Dignam J) on 26 June 2025. However, on 21 June 2025 the Donor died. That meant that the application for registration of the instrument became moot.

5. The hearing of the substantive application for registration had been fixed for 24 July 2025. On being informed of the death of the Donor, Dignam J adjourned the motion for discovery to 10 July 2025 and vacated the hearing date of 24 July 2025. The matter was ultimately listed for mention before me for the purposes of striking out the proceedings and dealing with any issue as to costs on 20 October 2025. Despite encouragement by the court on that date and again on 17 November 2025, the parties could not reach agreement as to how the costs of the application should be dealt with. Notwithstanding that the proceedings had become moot, the Objector served two further motions for discovery on the solicitor for the Attorney on 10 October 2025 and

14 October 2025. Those motions sought further extensive documentation. The Objector also swore two further highly contentious affidavits, on 8 October 2025 and 13 October 2025, in support of those motions.

6. While the Attorney initially sought part of the costs incurred in bringing the application for registration from the Objector, with part being borne by the Donor’s estate, she modified her position to seeking an order for her costs in connection with the application for registration, to be paid entirely out of the estate of the Donor. The Attorney also acknowledged that the minimal costs claimed by the Objector (who initially had legal representation but who appeared throughout as a litigant in person)

and a small sum for the Objector’s expenses should also be paid from the estate of the Donor. The Objector opposed this proposal, sought more detailed information in relation to the Attorney’s costs and, on 13 November 2025, proposed that the sum of €5,000 by way of contribution towards the Attorney’s costs should be borne by the estate of the Donor, with the balance being borne personally by the Attorney. By the time of the hearing on the issue of costs on 18 February 2026, the Objector had modified her position such that she confirmed that she would not object to a contribution of €12,500 for the Attorney’s costs coming from the estate. By that stage, the Attorney’s costs had increased to €20,848 (inclusive of VAT, counsel’s fees and outlay).

7. Having heard submissions from counsel on behalf of the Attorney and from the Objector herself, I indicated that I would give a written judgment on the issue. However, I gave the parties a further short period to see whether they could narrow the difference between them on the costs which the Objector would not oppose being ordered to be paid out of the estate for the Attorney’s costs. Unfortunately, that engagement did not bear fruit. While I was informed that the Attorney was prepared to accept a lesser sum (€16,000 including VAT and outlay) if the Objector confirmed that she would not oppose that, the Objector was not prepared to move off her figure of €12,500. In those circumstances, it has been necessary for me to produce this judgment.

2. Summary of Decisions

8. For reasons set out in more detail in this judgment, I am satisfied that the appropriate order for costs to make in this case is an order that the Attorney’s costs of the application for registration of the EPA and for dealing with the Objector’s objection to registration as well as the costs of the hearing on the issue of costs, be paid out of the estate of the Donor. I would have been prepared to order that some of the costs incurred by the Attorney should be paid by the Objector, owing to the manner in which she sought to deal with the costs issue initially and sought to prolong the proceedings by attempting to bring further motions for discovery and by swearing further affidavits, notwithstanding that the proceedings had become moot, which thereby required a further date to be allocated by the court for the hearing on the issue of costs and for the preparation of legal submissions for that application. However, I will not make such an order as the Attorney did not press an application that any of the costs should be borne by the Objector.

9. While the Attorney was prepared to accept a lesser sum in respect of costs payable out of the estate, if the Objector did not oppose the payment of such sum, the Objector did not agree to that proposal. Accordingly, it has been necessary for me to consider whether to measure the costs sought by the Attorney or to direct that those costs be adjudicated by a Legal Costs Adjudicator. While I have given serious consideration to directing those costs to be adjudicated, in my view, that would only lead to further delay, contention and dispute in an already highly contentious dispute between the Attorney and the Objector and would further deplete the assets of the Donor. Therefore, I have decided that it would not be appropriate for me to direct that the costs be adjudicated and that I should, instead, measure the costs myself. Having considered the material provided by the Attorney’s solicitor in support of the costs claimed, and noting that the Objector has no issue with the fees proposed by counsel in her fee note, I am satisfied that, for the reasons set out in more detail at the end of this judgment, the sum of €20,000.00 (to include VAT, counsel’s fees and outlay) is a fair and reasonable sum for the Attorney’s costs, bearing in mind the number of appearances and the volume and complexity of the materials which the Attorney was required to deal with in bringing the application for registration and in responding to the objections maintained by the Objector. I will, therefore, order that the Attorney be entitled to receive her costs of the application for registration and of dealing with the objections maintained by the Objector, out of the estate of the deceased. I will measure those costs at €20,000.00 inclusive of VAT and outlay.

10. Ironically, the Attorney is entitled to the greatest share of the various assets of the Donor under his will and so will be most affected by the order that the costs be payable from the estate.

11. While the Objector did not confirm her agreement that the small sums for her legal costs and expenses should be borne by the estate, however, in order to be fair to her, I will direct that the sum of €1,017.00 be paid out of the estate of the deceased in respect of those costs and expenses incurred by the Objector.

3. Relevant factual and procedural background

12. Mr HM, the Donor, had four children: the Attorney, the Objector, JM and HM junior. In 2017 the Donor engaged AOB of … . . Solicitors to create an Enduring Power of Attorney under the 1996 Act. The Donor executed the Enduring Power of Attorney on 10 July 2017 (the “EPA”). The statutory formalities for the creation of the EPA were all complied with.

13. The Donor appointed his daughter, CM, as his attorney with general authority to act on his behalf in relation to all of his property and affairs. The two notice parties named in the EPA were his son JM and his daughter AV, the Objector. Mr AOB, the solicitor, completed Part D of the instrument in which he stated that, after interviewing the Donor and making relevant enquires, he was satisfied that the Donor understood the effect of creating the enduring power and had no reason to believe that the document was being executed by the Donor as a result of fraud or undue influence. Part E was completed by Dr JM, a registered general practitioner. He stated that, in his opinion, at the time the document was executed, the Donor had the mental capacity, with the assistance of such explanations as may have been given to him, to understand the effect of creating the power. It was confirmed by Mr AOB (in an email to the Objector sent on 10 November 2025) that the fees for the preparation of the EPA in 2017 were paid by the Donor at the time.

14. The Donor made a will on 31 October 2019 (the “Will”). Mr AOB’s firm was not involved in the preparation of the Will (and is not acting in the administration of the Donor’s estate). The Will was exhibited in evidence by the Objector (in an affidavit which she swore on 13 October 2025). The Donor appointed the Attorney to be his executrix under the Will. He directed that the proceeds of the sale of the family home be divided between three of his children in the following shares: the Attorney (50%), JM (25%) and the Objector (25%). The Donor’s liquid assets were bequeathed to the Attorney (67%) and the Objector (33%). The residue was bequeathed to the Attorney, JM and the Objector in equal shares. The fact that the Attorney is the largest beneficiary under the Donor’s Will is relevant to the impact of any order that the Donor’s estate pay the costs of the Attorney’s application for registration of the EPA or any of the Objector’s costs. In the event that the Will is admitted to probate, the Attorney will bear the greater burden of any order for costs payable by the estate.

15. The Donor had declining health and needed assistance with his care from around 2016. His health further deteriorated from 2021 onwards as a result of which his care needs increased significantly. Some care was provided through and by the HSE and some care was privately funded by the Donor. The Donor had a number of different medical conditions, including dementia. He was prone to falls and seizures and had a number of admissions to Hospital (“Hospital A”) in September 2023 and November 2023. He was transferred from the Hospital A to Hospital (“Hospital B”) on 11 December 2023 for rehabilitation. He was then transferred from Hospital B to Nursing Home (the “Nursing Home”) on 3 January 2024 where he resided until his death, at the age of 90, on 21 June 2025. While much detail in relation to the matters just summarised were contained in the affidavits sworn by the Attorney and by the Objector in connection with the registration application, I have deliberately provided a very short summary here and some of the information will be further redacted in the published version of this judgment.

16. In terms of the Donor’s mental capacity, his general practitioner, Dr JD, provided a certificate on 2 May 2024 stating that when he saw the Donor on 3 October 2023 the Donor “was of sound mind and capable of making decisions about his life”. Dr BD, Consultant Physician in Geriatric Medicine, provided a report in December 2023 having seen the Donor at his clinic on 27 October 2023. In his report, Dr BD noted that the Donor had been attending him in [Hospital B] for over two years as a result of “falls, frailty and evolving dementia”. Dr BD noted that when he last saw the Donor on 27 October 2023, he had been “relatively optimised with a large support system of care which is coordinated mainly by his daughter [the Attorney] who attends appointments with him”. He noted, however, that since then the Donor had been admitted to Hospital A with “a delirium and functional decline” and that he had seen him on a number of occasions following the Donor’s admission to Hospital A. Dr BD noted that during his period in hospital there were “some concerns raised regarding managing his finances, power of attorney and safeguarding concerns at home”. He referred to having a number of phone calls with the Attorney and met with one of the Donor’s sons. The Doctor noted that there was “some disharmony regarding his care system” and that, while the Donor was unable to engage in a discussion about his care planning or financial planning while in hospital, he had spoken with the Donor on 27 October 2023 and that the Donor was “clear he wished for [the Attorney] to coordinate his care system and assist with his financial management”. Dr BD noted that the team would “continue to try and optimise [the Donor’s] cognition and function to allow him to best engage in his care planning”. The Doctor expressed the view that “given the fluctuance and uncertainty, [he did] not think it is appropriate to enact the power of attorney until a level of stability has been reached”.

17. However, a Consultant Geriatrician in Hospital B, Dr POS, provided a report on 22 December 2023 in which she expressed her view and the view of the MDT team working with the Donor that, as a result of his various conditions including dementia, the Donor lacked “the capacity to manage financial and legal affairs due to his dementia and that his cognition is likely to deteriorate longitudinally”. In his further report dated 18 January 2025, Dr BD confirmed his agreement with Dr POS based on his assessment of the Donor on 17 January 2025 that the Donor “no longer has the capacity to manage his affairs independently as a result of his dementia”.

18. In light of Dr POS’s report of 22 December 2023, the Attorney, having taken legal advice, decided that she should make an application to the High Court for registration of the EPA on the basis that she had evidence that the Donor was or was becoming incapable, by reason of a mental condition, of managing his property and affairs. S. 9(1) of the 1996 Act requires an attorney to make an application for registration of an instrument creating an enduring power if the attorney “has reason to believe that the donor is or is becoming mentally incapable”. However, before making an application for registration, the attorney is required by s. 9(2) to comply with the provisions as to notice set out in the First Schedule to the 1996 Act. The Attorney was, therefore, required to give notice of the intention to apply for registration of the EPA to, among others, the notice parties named in the EPA, namely, JM and the Objector. That notice was provided on 14 February 2024 by notice dated 8 February 2024.

19. Before the Attorney made her application for registration of the EPA, the Objector filed a notice of objection to registration on 7 March 2024. She relied on two of the grounds set out in s. 10(3) of the 1996 Act. First, she contended that the Attorney was “unsuitable to be the Donor’s attorney” (having regard to all the circumstances). Second, she alleged that “fraud or undue influence was used to induce the Donor to create the enduring power”. The Objector swore an affidavit in support of her objection on 25 March 2024 in which she elaborated on the grounds of her objection. Essentially, she contended that the Attorney misapplied and mismanaged the Donor’s funds. The Attorney has maintained throughout, on affidavit, that the funds she withdrew from the Donor’s account were to fund his care. There was a major dispute between the Attorney and the Objector on this issue which may have had to be resolved had these proceedings gone to trial. However, since the proceedings became moot when the Donor died on 21 June 2025, the court cannot resolve the issue and it would not be appropriate for me to ventilate the detail of the dispute between the siblings in this judgment on costs save to note that it was highly contentious. The affidavit sworn by the Objector to support her notice of objection contained a number of other allegations concerning access to the Donor’s home, on which it is not necessary to elaborate here.

20. I would observe that in her submissions to the court on the hearing of the costs application, the Objector contended that she had been urging the Attorney to seek registration of the EPA earlier in 2023 as she was concerned about the Donor’s deteriorating health and his declining capacity. The Objector stated that, at that point, she was unaware of the matters which she subsequently discovered and relied upon to oppose registration of the EPA.

4. The application for registration

21. The Attorney then made an application for registration of the EPA to the Registrar of Wards of Court on 10 July 2024 in accordance with ss. 9 and 10 of the 1996 Act. That application was grounded on an affidavit sworn by the Attorney on 10 July 2024. However, in circumstances where the Objector had already given a notice of objection to the registration and where she relied on a number of the grounds of objection set out in s. 10(3) of the 1996 Act, it was not open to the Registrar of Wards of Court to register the EPA. It was necessary for the matter to be brought before the court itself so that the court could carry out the inquisitorial role provided for in s. 10(2). Under that subsection, where a valid notice of objection has been given pursuant to s. 10(3), “… the Court shall neither register the instrument nor refuse the application until it has made or caused to be made such enquiries (if any) as it thinks appropriate in the circumstances of the case”.

22. The practice in such circumstances is that a notice of motion had to be issued by the Attorney returnable before the High Court. That notice of motion was issued on behalf of the Attorney on 11 March 2025 and was made returnable before me on 7 April 2025. The procedural chronology provided on behalf of the Attorney with her legal submissions on the costs application is incorrect in stating that the notice of motion was issued on 10 July 2024. That was the date on which the Attorney’s application for registration was made to the Registrar of Wards of Court. Since the objection had already been given by the Objector, the Registrar could not deal with the application and a notice of motion had to be issued on behalf of the Attorney returnable before the Court. The timeline provided by the Objector with her submission on costs also omitted reference to the motion.

23. The Attorney’s motion was supported by another affidavit which she swore on

11 March 2025. In that affidavit, the Attorney provided a further response to the notice of objection given by the Objector and to the affidavit sworn by the Objector on 25 March 2024. The Attorney had, in the context of the application for registration made to the Registrar of Wards of Court in July 2024 also sworn an affidavit on 10 July 2024 addressing the objections raised by the Objector. The Attorney’s affidavit of 11 March 2025, while repeating much of what was said in her affidavit of 10 July 2024, went somewhat further than the earlier affidavit.

24. Prior to the return date of the motion before me on 7 April 2025, the Objector swore a lengthy affidavit in response to the motion. In that affidavit the Objector made a series of allegations against the Attorney and repeated many of the allegations she had made in her earlier affidavit supporting her objection. The Objector swore a further affidavit (described as an “Addendum”) on 2 May 2025. The Attorney swore a detailed affidavit on 8 May 2025 in response. In her affidavit, the Attorney disputed the allegations made by the Objector and addressed the grounds of objection which she had raised. She rejected the Objector’s contention that the Attorney was unsuitable to be the Donor’s attorney and that fraud or undue pressure was used to induce the Donor to execute the EPA. The Attorney responded to and rejected all of the allegations made by the Objector.

25. The motion had been adjourned on consent by me to 12 May 2025 when it was dealt with by Heslin J. Having heard that the Objector wished to bring a motion for discovery of a vast range of documents, including medical records held by the Donor’s general practitioner prior to the creation of the EPA, several years of veterinary records in relation to the Donor’s dogs and nursing home records, Heslin J listed that motion for hearing on 26 June 2025. He also listed the matter for case management on 10 July 2025 and for hearing on 24 July 2025.

5. The death of the Donor: mootness

26. The Donor died on 21 June 2025. The proceedings thereby became moot. An application was made on behalf of the Attorney on 26 June 2025, when the Objector’s motion for discovery was listed for hearing, to have the proceedings struck out. However, Dignam J adjourned the matter to allow the Objector to be present and for any issue as to costs to be determined. The hearing date of 24 July 2025 was vacated. On 10 July 2025, the application for registration and the motion for discovery were adjourned for mention before me to 20 October 2025. By that stage, since the proceedings had become moot, the only outstanding issue was the cost of the registration application.

6. The dispute on costs

27. Between early July 2025 and 20 October 2025, voluminous correspondence was exchanged between the Attorney’s solicitor and the Objector. In a letter dated 3 July 2025, the Attorney’s solicitor pointed out that the proceedings were moot and that that included the Objector’s motion for discovery. In relation to costs, he contended that the objections made by the Objector were “entirely misplaced” and ought never to have been made. He alleged that the affidavit sworn by the Objector contained material that was “scandalous, vexatious, irrelevant to the pleaded objections and repetitious”. As a consequence, he contended that the Attorney had required significant legal assistance and advice to respond to the objection and to give effect to the Donor’s will and preference, as recorded in the EPA, and that the registration of the EPA was significantly delayed by the objection. He sought the Objector’s consent to an order being made that the Attorney’s costs from 7 March 2024 to date be paid by the Objector and that her costs up to that point be paid from the Donor’s estate. The Objector did not accept any of this. In her reply dated 18 July 2025, she stated that she would be continuing with her application for discovery as it was “necessary for us to collect evidence for our ongoing investigations”. She contended that she had the right to object to registration of the EPA and made various other points. She did not address the question of costs in that letter.

28. The Attorney’s solicitor wrote again on 23 July 2025 pointing out that the only outstanding issue was the issue of costs and that he intended to make an application for an order for costs on the basis set out in his earlier letter. He further noted that if the Objector proceeded with the motion for discovery, the Attorney would have no option but to defend that application and in doing so would incur further costs which she would seek from the Objector. The Objector responded on 29 July 2025 setting out a whole series of further claims which she stated she would be making before the court on 20 October 2025. She then proceeded to set out those claims which repeated claims previously made that funds were improperly taken from the Donor’s bank accounts (allegations previously responded to by and rejected by the Attorney). She made a number of further allegations in that correspondence, including the allegation that the Donor had serious health issues long before the Attorney sought to register the EPA. The Objector also contended that she had incurred significant costs including legal fees and travel costs and would be seeking an order from the court for their payment.

29. On 15 October 2025, the Objector wrote to the Attorney’s solicitor seeking an adjournment of the matter from 20 October 2025 to a date in November 2025. The Attorney’s solicitor replied on 16 October 2025 refusing to consent to the adjournment on the basis that the proceedings were moot and that the only remaining issue in the case was that of costs. Despite that, however, the Objector purported to bring two further applications for discovery, one of which is undated but was received by the Attorney’s solicitor on 10 October 2025 and the other was dated 14 October 2025 and was received some time after that.

30. In the first of those further motions for discovery, the Objector sought discovery of a whole range of documents including GP medical records and copies of veterinary receipts as well as production of the original EPA and the production of “fifteen examples of the Donor’s original signature from around the same period as the disputed EPA [10 July 2017], as well as fifteen examples from before and after this date”. She grounded that motion on a further lengthy affidavit which she swore on 8 October 2025.

31. The second motion for discovery sought further extensive GP medical records. That motion was grounded on a further affidavit sworn by the Objector on 13 October 2025.

32. Both of these motions were issued and affidavits sworn and served on the Attorney’s solicitor at a time when the proceedings were clearly moot and were totally unnecessary and inappropriate. They clearly put the Attorney and her solicitor to further considerable cost, as the Attorney’s solicitor pointed out in his letter of 16 October 2025. However, with a view to bringing the matter to a conclusion and avoiding unnecessary cost and use of court time, the Attorney’s solicitor proposed as a “good faith compromise on an open basis” that an order be made for the payment of the following, out of the estate of the Donor:

(a) The Attorney’s legal costs of and incidental to the motion applying for the registration of the EPA and the costs of dealing with the objection to that registration;

(b) the Objector’s legal costs of €517 as claimed by her in a “schedule of costs” exhibited to one of her affidavits; and

(c) €500 in respect of the Objector’s expenses.

33. The matter was listed before me for mention on 20 October 2025. I afforded a further opportunity to the parties to seek to resolve the issue of costs, following which the proceedings would be struck out as they had become moot. I adjourned the matter for mention before me on 17 November 2025. Following that adjournment further correspondence was exchanged between the parties. On 10 November 2025, the Attorney’s solicitor furnished a copy of his fee note and enclosed a copy of counsel’s fee note. Counsel’s fees came to €6,765.00 (inclusive of VAT). The Objector confirmed at the hearing on costs, on 18 February 2026, that she had no issue with counsel’s fees. The Attorney’s solicitor’s fees including VAT and outlay came to €10,209.00. There was a short narrative of the work done by the solicitor. The total fees including counsel’s fees came to €16,974.00. In his covering email, the Attorney’s solicitor noted that his fees included the cost of preparation of the application to register the EPA and the cost of work subsequently carried out arising from the objection given by the Objector. The solicitor noted that the normal fee for preparation of an application to register an EPA, without any complication, was €1,000 plus VAT and outlays. However, he pointed out that in this case there was: “…additional and considerable work involved in dealing with numerous voluminous affidavits of objection with extensive exhibits, all of which had to be read, instructions sought from [his] client and counsel briefed accordingly. Draft replying affidavits had then to be settled with counsel and [his client] and engrossed for execution and then served. There was (sic) also five online court hearings and there is another one next week”.

34. Pointing out that he was not acting in connection with the administration of the Donor’s estate, the solicitor stated that the Attorney was seeking reimbursement from the estate in connection with the legal costs she incurred in attempting to register the EPA. He further pointed out that if the costs were to be paid out of the estate, having regard to the terms of the Donor’s Will, the Attorney herself would be indirectly paying most of those costs as they would effectively be deducted from the assets in respect of which she had the greatest entitlement. I would note here that the solicitor incorrectly described the extent of the Attorney’s entitlement in his letter. The terms of the Will have been summarised earlier. In that same email, the solicitor responded to queries raised by the Objector. He confirmed that the cost of preparation of the EPA in 2017 was paid by the Donor at the time. No further costs were paid by him.

35. The Objector wrote again on 12 November 2025 and made a number of points (which were relied on in her submissions in response to the Attorney’s application for costs). One of the points she made was that she did not object to the EPA itself but rather to her sister, CM, being the attorney under the instrument. She queried who the solicitor’s client was and contended that it was not possible to assess which portion of the fees should properly be chargeable to the Donor’s estate. She further criticised the lack of detail in the solicitor’s bill of costs and said that for that reason it was not possible to agree that any portion of the costs could be charged to the Donor’s estate. She maintained that her intention was to ensure that the estate would only be charged for “legitimate estate-related costs”. Somewhat bizarrely, the Objector asserted in that letter that “[n]o Enduring Power of Attorney was lodged for my late father by [the Attorney]”. The application for registration was, of course, for registration of the EPA executed by the Donor in which the Attorney was appointed as his attorney.

36. The Attorney’s solicitor replied in detail on 13 November 2025. In that letter he explained the circumstances in which he was engaged by the Donor in connection with the execution of the EPA in July 2017. The solicitor explained that the Donor was his client at that time and that he discharged the fee for the preparation of the EPA. He explained then that the Attorney contacted him in late 2023 in light of the Donor’s deteriorating mental capacity. Thereafter the solicitor dealt with the Attorney in connection with her application for registration of the EPA (an application she was obliged to make having regard to s. 9 of the 1996 Act). In connection with that application, he explained that the Attorney was his client.

37. The solicitor also addressed a number of other points raised by the Objector, including the obvious point that, contrary to her assertion, the Objector had objected to the registration of the EPA by lodging her objection in March 2024. In response to the Objector’s contention that the solicitor had provided an inadequate breakdown of fees, he enclosed a further breakdown of the items of work necessitated by the objections raised by the Objector. He explained that the fee was “significantly lower” than it would have been if he had been charging on an hourly basis. He also enclosed a copy of a letter he had sent to the Attorney on 25 February 2025 under s. 150 of the Legal Services Regulation Act 2015 (the “2015 Act”). In that letter he had provided details of his hourly rate. However he explained that the amount of work in in fact done far exceeded the estimate set out in the s. 150 letter which had been prepared in anticipation of only one court appearance, whereas there had been several. He observed that he could not have anticipated at the outset the amount of additional work that was involved and that the Attorney was informed that the costs were increasing as time progressed. The letter included a more detailed narrative of the work done, commencing with the taking of instructions from the Attorney on 30 November 2023, and including reference to the several court appearances and the preparation of documents required in connection with the application and the objection made by the Objector.

38. The Objector’s professed concerns were not assuaged by the solicitor’s correspondence and she sent a further letter on 13 November 2025. In that letter she contended that the legal work involved was carried out on behalf of the Attorney in her personal capacity as “proposed attorney” after the Donor had already lost capacity, that those costs arose “solely from her application to register the EPA and the subsequent objection proceedings” and that the solicitor had not been instructed by the Donor in relation to any of those matters. She maintained that the application to register the EPA was “pursued exclusively” for the benefit of the Attorney to gain control over the Donor’s property and affairs and was not undertaken for the benefit of the Donor. She further contended that the solicitor had a conflict of interest having originally acted for the Donor, when the EPA was created and executed in 2017, and then acting for the Attorney in the registration application. She made a number of other dubious legal assertions in her letter, some of which were maintained by her in her submissions to the court and I will deal with them in that context. She concluded by contending that the fees claimed were not properly chargeable to the Donor’s estate and should be borne personally by the Attorney. However she stated that, “in the interests of resolving this matter amicably and avoiding unnecessary litigation”, she was willing to agree to the sum of €5,000 being paid from the Donor’s estate as a “potential contribution towards the legal costs”, with the balance being borne personally by the Attorney. That proposal was not accepted by the Attorney.

39. When the matter came back before me on 27 November 2025, it was evident that, despite encouragement by me on the previous date, the parties had not been able to reach agreement on the question of costs. In those circumstances, I listed the costs issue for hearing on 14 January 2026. That date subsequently had to be moved to 18 February 2026 due to another urgent case which had to be dealt with on 14 January 2026. I made directions for the exchange of written submissions on the costs issue. The Objector provided her written submissions on 17 November 2025 and the Attorney’s submissions were furnished on 9 December 2025. The Objector provided a further skeleton submission on the question of costs at the hearing on 18 February 2026.

40. The parties continued to correspond after 17 November 2025. The Attorney’s solicitor wrote to the Objector on 26 November 2025, asking whether she had reconsidered her objection to the proposal that the costs be payable out of the Donor’s estate in light of various factors, including the fact that additional costs would be incurred in proceeding with the further hearing on costs. Reference was also made to the provisional views which I expressed on 17 November 2025 that, on a preliminary review of the papers, it appeared to me that the costs being sought on behalf of the Attorney for the actions taken to register the EPA seemed to be reasonable.

41. The Objector responded on 27 November 2025 raising a series of points and refused to move from the previous offer she had made. Most of the points were repeated in the submissions ultimately made by the Objector to the court. One of the points raised was that, since the EPA was never registered, and the Attorney had, therefore, never formally become the attorney under the EPA, any work done in the proceedings could not properly be characterised as work done for the Donor. The Objector argued that, since the EPA never took effect, the legal work done in seeking registration of the EPA was for the Attorney’s personal benefit only and conferred no benefit on the Donor or the estate. Furthermore, the objector submitted that, if registration of the EPA had been genuinely necessary for the Donor’s care, the application would have been processed promptly but instead was delayed, demonstrating, in the view of the Objector, that the proceedings commenced (to register the EPA) were undertaken for the Attorney’s personal benefit and not for the Donor. The s. 150 letter confirmed that the Attorney had retained the solicitor to apply to register the EPA and to defend her position in the proceedings, which the Objector believed demonstrated that the solicitor was acting for the Attorney personally, and that the majority of the work done (including the affidavits and court attendances) arose from “adversarial litigation” concerning the Attorney’s personal position and not “protective work for the Donor” for whom she asserted there was no benefit, as he was a long-term resident in the Nursing Home receiving full-time care.

42. The Objector sent several other letters and emails to the Attorney’s solicitor during the month of December 2025. She wrote another letter to the Attorney’s solicitor on 2 January 2026 as she had apparently not received the submissions sent by the Attorney’s solicitor on 9 December 2025. That letter was responded to on 9 January 2026. The solicitor also rejected the contention that the breakdown provided in respect of the costs on 10 November 2025 and 13 November 2025 was insufficient. A copy of the submissions were furnished again to the Objector on 9 January 2026.

7. Submissions on costs

43. Both parties provided succinct written submissions on the issue of costs, on which they elaborated at the hearing on 18 February 2026.

(a) The Attorney

44. Counsel for the Attorney relied on s. 168(1) of the 2015 Act and O. 99, r. 3 of the Rules of the Superior Courts (the “RSC”). She referred to the judgment of Murray J in the Court of Appeal in Hughes v Revenue Commissioners [2023] 3 IR 395 on the potential approaches to costs to be taken when proceedings become moot. Counsel noted that Murray J observed that where proceedings become moot as a result of an event which is “entirely independent” of the actions of the parties, the “fairest outcome” will “generally” be that the parties should bear their own costs (para. 31, p. 405). While acknowledging that that was the general approach to be taken and the “fairest outcome” in ordinary adversarial litigation, counsel submitted that that position can be distinguished from an EPA registration application in the following three ways:

(1) The application for registration of an EPA is, an inquisitorial process which is directed to the welfare and interests of a donor who is alleged to have become mentally incapable (as explained by Whelan J in the Court of Appeal in E v G [2021] IECA 108, at para. 84);

(2) Even where the inquisitorial process becomes adversarial, a possibility which would not exist in ordinary litigation which becomes moot exists in proceedings for the registration of an EPA where in an appropriate case costs might be borne by the estate of the donor where the mootness arises as a result of the death of the donor; and

(3) An attorney appointed under an EPA is under a statutory obligation under s. 9(1) of the 1996 Act to make an application for registration of the EPA as soon as practicable when the attorney has reason to believe that the Donor is or is becoming mentally incapable.

Counsel relied on these factors as being of particular significance for the court’s determination as to the “fairest outcome” in the costs issue.

45. As I explain below, I agree that Hughes sets out relevant principles to assist in the determination of the costs dispute in this case in circumstances where the proceedings became moot on the death of the Donor.

46. Counsel referred me to a number of extracts from the judgment of Whelan J for the Court of Appeal in E v G. In that case the High Court had ordered that the unsuccessful objector pay almost all of the costs of the applicant in applying for registration of an EPA and the Court of Appeal ordered the objector to pay 50% of the costs of the unsuccessful appeal. Whelan J noted that an application for registration of an EPA is generally a routine application where the default position ought to be no order for costs. However, by contrast, counsel noted that Whelan J observed that, where an inquisitorial application became lengthy, confrontational and adversarial as a result of objections raised, the default position was that costs should follow the event (and therefore be capable of being awarded against the unsuccessful objector). Counsel also drew attention to Whelan J’s admonition that a court dealing with a contested registration application should adopt a “conservative approach” where costs are sought to be paid out of the donor’s estate and should keep in “sharp focus” the public interest and welfare objects of the 1996 Act when dealing with the question of costs.

47. Counsel submitted that there was, nonetheless, a recognition in E v G that in an appropriate case the court could direct payment of costs out of the donor’s estate. Further, she submitted that the outcome of E v G could be readily distinguished from the present case for two reasons:

(1) In E v G, there was an “event” and the default position could be applied where the unsuccessful objectors could be ordered to pay the costs. In contrast, these proceedings became moot before the registration application could be determined and so there was no “event”. It would be very unfair in such circumstances if an attorney who bona fide sought to register an EPA for the benefit of the donor was always required to bear the costs of so doing where the donor died before a contested registration application was determined; and

(2) The court’s reference in E v G to a “conservative approach” to the awarding of costs out of the donor’s estate was made in the context of a donor who was still alive, as is clear from para. 64 of the judgment. The same considerations and need to preserve the assets of the donor for his or her welfare needs, care, maintenance and upkeep do not arise where the contested registration application becomes moot by reason of the death of the donor before the application can be determined.

48. As I outline below, E v G is clearly distinguishable from this case on the facts and on the legal implications of those facts, given that the EPA registration application in that case was determined by the High Court after a full hearing and was the subject of an appeal to the Court of Appeal. No question of mootness arose in that case. However, the judgment in that case, particularly the discussion by Whelan J of the purpose of the 1996 Act, is highly relevant to the issue which I have to determine and to the manner in which the costs of an EPA registration application ought generally to be dealt with.

49. Counsel also noted that with the additional costs of having to proceed with the costs hearing (which were outlined in the Attorney’s solicitor’s letter of 9 January 2026), the total costs being sought by the Attorney were €20,848 (inclusive of VAT, counsel’s fees and outlay). Counsel explained that the Objector had made an increased open offer immediately prior to the commencement of the hearing of €12,500 as being the sum for costs which she was prepared to accept could be payable out of the estate. Counsel indicated that the Attorney was not prepared to accept that offer.

50. Counsel then addressed the points made in the Objector’s written submission and I will refer to what she said in relation to those points when referring to the Objector’s submissions below.

(b) The Objector

51. In her written submission on costs, the Objector made five points. They were as follows:

(1) The Objector contended that the costs which were being sought by the Attorney did not arise for the benefit of the Donor nor for the benefit of his estate. She contended that the costs arose solely from the Attorney’s personal application to have her appointed as attorney after the Donor had already lost capacity. In response, counsel for the Attorney made the point that this submission is based on a basic misunderstanding by the Objector of the scheme of the 1996 Act. The Attorney did precisely what she was required to do under s. 9 of the 1996 Act by applying for registration of the EPA when she had reason to believe that the Donor had or was becoming mentally incapable. I agree with that submission which is clearly correct.

(2) The Donor was already in a nursing home from January 2024 receiving full care, medical support and his account was fully up to date. The Objector submitted that no evidence was produced showing that registration of the EPA was necessary to enable any additional care, protection or intervention on the Donor’s behalf. In response, counsel for the Attorney noted that the 1996 Act does not require an attorney to prove that registration of the EPA is necessary for those purposes but, in any event, she pointed out that the Attorney had set out on affidavit why registration was necessary in the interests of the Donor (at paras. 53 –

64 of the Attorney’s affidavit sworn on 8 May 2025). I also agree with that submission. Furthermore, the Objector’s submission ignores the fact that the Attorney was obliged under s. 9 of the 1996 Act to bring the application for registration of the EPA.

(3) The Objector submitted that as the EPA was never registered and never took effect, the work performed could not be regarded as work on behalf of the Donor. In response, counsel for the Attorney made the point that that submission was premised on a basic misunderstanding of the 1996 Act. The EPA was not registered because the Objector had objected and the registration application could not be determined because the Donor died rendering the application moot. I agree with that submission which is, in my view, unanswerable.

(4) The Objector contended that the solicitor, Mr AOB, was acting for the Attorney in her personal capacity and not on behalf of the Donor. She referred to the fact that the proceedings were adversarial between family members and that the work done on behalf of the Attorney could not properly be charged to the Donor or to the estate. However, counsel for the Attorney pointed out that the solicitor had acted for the Donor when the EPA was executed. As the nominated attorney under the EPA, the Attorney subsequently instructed the solicitor to act for her in the registration of the EPA in accordance with the wishes of the Donor. She pointed out that this is an “entirely typical and proper arrangement”. I agree with counsel for the Attorney. In acting for the Donor in the creation and execution of the EPA, the solicitor was clearly acting for the Donor and the Donor was the solicitor’s client. In acting in the application to register the EPA, the solicitor was acting for the Attorney and she was his client, for the specific purpose of securing registration of the EPA in accordance with the Donor’s wishes as expressed in the instrument creating the enduring power. I do not accept the submission advanced by the Objector that there is or was any conflict of interest in the solicitor acting for the Attorney in the EPA registration application, having acted for the Donor when the EPA was created.

(5) The Objector submitted that it is a well-established principle that costs incurred in private disputes over EPA registration fall on the applicant personally unless the application is shown to have been necessary for the Donor and that no evidence of such necessity exists. In response, counsel for the Attorney submitted that no such principle exists and no authority was relied on by the Objector. I agree with counsel for the Attorney. There is no such well-established principle.

52. In her further skeleton submissions on costs, provided at the hearing on 18 February 2026, the Attorney advanced a number of further points. They were as follows:

(1) She submitted that the objections she had raised were reasonable. The court’s statutory oversight in EPA applications exists to protect vulnerable donors. As a notice party, she maintained that she was entitled and obliged to raise safeguarding concerns. She stated that her objection was not to the existence of an attorney but specifically to the proposed appointment of her sister as attorney. However, this submission does not make sense. As a notice party, the Objector was entitled to file an objection and to have that objection considered by the court in carrying out its inquisitorial role under s. 10 of the 1996 Act.

However, the Objector was not entitled to use the opportunity of the objection “to dredge up for plenary ventilation the accumulated interfamilial grievances, issues or disputes as may hitherto have developed between the parties” (in the words of Whelan J in E v G at paras 121 – 122). That was my impression of what the Objector was doing in the affidavits which she swore, including those sworn long after the proceedings had unquestionably become moot on the death of the donor. The Objector’s submission that she was not objecting to the existence of an attorney but only to the appointment of the Attorney is meaningless as the Attorney was the person chosen by the Donor to be his attorney in the EPA.

(2) She contended that she had raised reasonable financial concerns in her affidavits and referred to bank statements showing withdrawals from the Donor’s bank account while the Donor was hospitalised and claims that no proper receipts and other supporting documentation were produced. On that basis, it was contended that it was reasonable for her to seek transparency and safeguards before consenting to registration of the EPA with her sister as attorney. I accept that the Objector was entitled to raise concerns. However, the Attorney responded to those concerns in a number of affidavits. The court never had the opportunity to rule on the reasonableness or correctness of the concerns raised since the proceedings became moot.

(3) She contended that the Attorney had made no meaningful attempt to compromise on the costs issue. She stated that she had made a proposal that certain sums should be paid from the estate towards costs with no counter offer being made. I do not accept that submission. The voluminous correspondence exchanged between the parties does show movement on the part of the Attorney and her solicitor on the question of costs. (see, for example, the position on costs set out in the Attorney’s solicitor’s letter of 3 July 2025 and the position subsequently advanced by the Attorney’s solicitor in his letter of 16 October 2025).

(4) She contended that the work done in respect of the application to register the EPA was of no benefit to the Donor as the EPA was never registered, the Donor was fully cared for in the nursing home with his account being up to date and there was no urgency or operative benefit to the Donor or his estate. As I explained above, this submission is based on a fundamental misunderstanding of the role and duties of the Attorney under the 1996 Act. The Attorney was obliged to bring an application for registration of the EPA once she received evidence that the Donor was or was becoming mentally incapable.

(5) The Objector contended that the costs bill has not been properly particularised and consists of global lump sums with no detailed itemisation, time breakdown or hourly rates provided. While the Objector is correct in stating that there is not a detailed time breakdown with hourly rates, there is sufficient information in the fee notes and narratives provided by the Attorney’s solicitor to enable me to determine whether the costs claimed are fair and reasonable and whether those costs were reasonably incurred. I have given consideration to whether I should order that the costs be sent for adjudication and I set out my conclusions on that issue later.

(6) She contended that if a costs order were made against a notice party acting in good faith, it would deter legitimate safeguarding objections being raised in future EPA applications and would undermine the protective oversight function of the court. However, this ignores the fact that counsel for the Attorney confirmed that the Attorney was not seeking a personal order for costs against the Objector, but was instead seeking her costs out of the Donor’s estate. This point, therefore, falls away.

53. In conclusion, the Objector contended that the Attorney should bear her own costs of bringing the EPA registration application and of dealing with the Objector’s objections and that, therefore, each party should bear its own costs.

8. Further opportunity to resolve costs dispute

54. Having heard from the parties, I indicated that I intended delivering a written judgment on the costs issue. However, I afforded the parties a further short period in which to seek to resolve the matter in circumstances where the Objector was not objecting to the sum of €12,500 being paid towards the Attorney’s costs from the Donor’s estate and the Attorney was seeking costs of just under €20,500.

55. After approximately an hour, I was informed by the parties that, while the Attorney was prepared, in order to reach agreement there and then, to reduce her claim for costs to €16,000, the Objector was not prepared to increase the sum which she was agreeable could be paid from the estate. It was confirmed by counsel for the Attorney that, in those circumstances, the Attorney was maintaining her original claim for costs. By reason of the absence of agreement, it has been necessary for me to provide this judgment.

9. Decision on costs

56. I must first identify the relevant statutory provisions and legal principles which govern my decision on the costs issue in this case.

(a) Statutory provisions

57. In terms of the relevant statutory provisions, the first point to make is that the 1996 Act does not provide any assistance as to how the costs of a contested application to register an EPA should be dealt with by the court (as was noted by Whelan J in E v G at para. 63). However, it is, in my view, highly relevant to most of the objections made by the Objector to the payment of some or all of the Attorney’s costs from the estate of the Donor that the Attorney was under a statutory obligation to bring an application to register the EPA when she received Dr POS’s report, confirming the Donor’s lack of capacity in the relevant decision-making areas, on 22 December 2023. While the Objector argued that the Attorney ought to have brought the application for registration much sooner than she did (subsequently arguing that the Attorney was unsuitable and opposing registration of the EPA), I do not need to decide whether the application ought to have been brought earlier. There is ample evidence before me to confirm that at the very least by the time Dr POS’s report was received in December 2023, the Attorney was under an obligation to make an application for registration of the EPA. Although it imposed an obligation on the Attorney to make the registration application, the 1996 Act does not provide an answer as to who should bear the costs of such an application where it is contested (as here) and where, by reason of the death of the relevant donor, the court never gets to decide the registration application and the objections made in response to it.

58. The relevant statutory provisions applicable to costs are ss. 168 and 169 of the 2015 Act. These provisions both confer and regulate the court’s power to award costs (as explained by Murray J in the Supreme Court in Little v The Chief Appeals Officer [2024] IESC 53 at para. 38; a similar point was previously made by Whelan J in E v G at para. 78).

59. Before turning briefly to those provisions, reference must also be made to O. 99, r. 2(1) and O. 99, r.3(1) RSC. O. 99, r. 2 states: “Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) 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 …” Order 99, Rule 3(1) RSC provides that insofar as the High Court is concerned, that court:

“in considering the awarding of the costs of any action or step in any proceedings … shall have regard to the matters set out in section 169(1) of the 2015 Act, where applicable.”

60. S. 168(1) of the 2015 Act provides: “Subject to the provisions of this part, a court may, on application by a party to civil proceedings, at any stage in, and from time to time during, those proceedings –

(a) order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings, or

(b) where proceedings before the court concerned the estate of deceased individual, or the property of a trust, order that the costs of or incidental to the proceedings of one or more parties to the proceedings be paid out of the property of the estate or trust.”

61. Counsel for the Attorney acknowledged that the provisions of s. 168(1)(b) are not directly engaged by the facts of this case as the proceedings when commenced did not concern the estate of a deceased person or the property of a trust. However, the costs implications of the proceedings to register the EPA have, since the death of the Donor, concerned the estate of the Donor in circumstances where it is said that some or all of the Attorney’s costs (and those of the Objector) should be paid out of the estate of the deceased.

62. Section 169(1) which is headed “Costs to follow event” (although the term “event” does not appear in s. 169 itself) provides that a party who is “entirely successful” in civil proceedings is “entitled” to an award of costs against the unsuccessful party unless the court orders otherwise, having regard to the “particular nature and circumstances of the case, and the conduct of the proceedings of the parties” including the matters set out in subparagraphs (a) to (g).

63. The discretion conferred on the court by s. 168(1)(a) and O. 99, r. 2(1) is a general and wide discretion although it is conditioned by s. 169(1) in a critical respect. Where a party is “entirely successful” in civil proceedings that party is “entitled” to its costs unless the court orders otherwise having regard to the matters referred to in s. 169(1) (as again noted by Murray J in Little at para. 38).

64. While the court does have a wide and general discretion to determine the costs in this case, the provisions of s. 169(1) are not engaged as it could not be said that either the Attorney or the Objector was “entirely successful” in the proceedings which were not determined by the court. Nor could it be said that the costs should be awarded in favour of or against any of the parties on the principle that “costs follow the event”, in circumstances where there is no “event” in this case as the Donor died before the court could decide the EPA registration application and the proceedings, therefore, became moot.

65. In light of these various considerations, it is necessary to look first at how courts have dealt with the proper allocation of costs where proceedings have become moot in circumstances which were outside the control of the parties and through no action on the part of either of the parties. It is then necessary to consider how the courts have dealt with costs issues in the particular circumstances of contested EPA registration applications.

(b) Mootness: Independent of actions of parties

66. This question arose for consideration by the Supreme Court in Cunningham v President of the Circuit Court [2012] 3 IR 222. In that case, an appeal had become moot as the criminal prosecution which the applicant had sought to prohibit was terminated by the DPP by entry of a nolle prosequi. The Supreme Court then had to deal with the costs of the appeal which had become moot. Clarke J (for the Supreme Court) adopted the approach he had previously taken in the High Court in Telefonica O2 Ireland Limited v Commission for Communications Regulation [2011] IEHC 380. He stated that: “… a court, without being overly prescriptive as to the application of the rule, should, in the absence of significant countervailing factors, ordinarily lean in favour of making no order as to costs in cases which have become moot as a result of a factor or occurrence outside of the control of the parties but should lean in favour of awarding costs against a party through whose unilateral action the proceedings have become moot.” (at para. 230)

67. The issue was considered again, this time by the Court of Appeal, in Hughes. In his judgment for the Court of Appeal, Murray J considered three possible circumstances in which mootness could arise, which he said could be reduced to three broad propositions (only the first of which is relevant to this case). The first and only relevant proposition for the purposes of this case was described by Murray J in the following terms:

“… where the mootness arises as a result of an event that is entirely independent of the actions of the parties to the proceedings, the fairest outcome will generally be that the parties should bear the costs themselves. Neither is responsible for the mootness, and neither should have to pay for costs rendered unnecessary by an event for which they bear no responsibility.” (para. 31)

68. It is also important to note what Murray J stated at para. 34, where he stressed that the three propositions outlined by him presented a “general approach rather than a set of fixed, rigid rules”. He continued: “The starting point is that the court has an overriding discretion in relation to the awarding of costs, and the decisions to which I have referred are intended to guide the exercise of that discretion. They are thus properly viewed as presenting a framework for the application of the court’s discretion in the allocation of costs in a particular context and should not be applied inflexibly or in an excessively prescriptive manner (P. T. v Wicklow County Council [2019] IECA 346 at paras

18 – 19).”

69. I accept the submission made by counsel for the Attorney that Murray J was identifying, by way of a general approach, that where proceedings become moot as a result of an event entirely independent of the actions and outside the control of the parties, the fairest outcome will generally be that the parties bear their own costs. However, it follows from what Murray J said that there may be cases where that would not be a fair outcome and where the general approach would not be appropriate. In my view, this is such a case for the principal reason that the Attorney was not in the same position as a plaintiff, applicant or claimant in ordinary civil proceedings who has a choice as to whether to bring the relevant proceedings or claim. The Attorney was subject to a statutory obligation under s. 9(1) of the 1996 Act and was required to make an application to register the EPA in light of the medical evidence she had received. That puts her in an entirely different situation to an ordinary plaintiff, applicant or claimant and leaves open the possibility that the “fairest outcome” in her case would not be that the parties bear their own costs but that she would be entitled to her costs from some other source, which could either be the Objector or the estate of the Donor. It would generally not be fair to order the Objector to pay all of the costs in circumstances where the court never got to adjudicate on the application to register the EPA or on her objections (although a case could be made for an order being made against the Objector for some of the costs which arose after the death of the Donor). That leaves payment of the costs of the Attorney out of the estate of the Donor as the most likely fairest outcome in the circumstances of this case.

(c) EPA registration application costs

70. The leading decision on the question of costs in the context of a contested EPA registration application is the judgment of Whelan J for the Court of Appeal in E v G. In her judgment of that case, Whelan J helpfully set out some general principles applicable to how costs should be dealt with in the case of contested EPA applications. Whelan J’s discussion on the purpose of the 1996 Act is also of considerable assistance.

71. The case involved an application by two attorneys to register an EPA created by their mother. Two siblings objected to registration and it was necessary for the attorneys to bring an application for an order registering the EPA. That application was disputed. The High Court made an order registering the EPA and made certain directions under s. 12(2) of the 1996 Act. The High Court rejected the objections advanced by the objectors and made an order that the objectors pay seven sixths of the attorneys’ costs. The objectors appealed the costs order to the Court of Appeal.

72. It will be immediately obvious that no question of mootness arose in that case. The High Court decided the application for registration of the EPA on its merits and addressed and rejected the objections advanced by the objectors. The donor, in that case, was alive throughout the High Court proceedings and the appeal to the Court of Appeal and had an ongoing requirement for her care to be funded. It is necessary, therefore, when considering some of the principles identified and discussed by Whelan J in her comprehensive judgment to bear in mind those very significant distinguishing features between this case and E v G.

73. Whelan J outlined the purpose of the 1996 Act and stated (at para. 64) as follows: “The manner in which the 1996 Act is framed suggests that the assets and estates of the donor of the EPA are primarily to be made available for her welfare needs, care, maintenance and upkeep and are not to be viewed as generally available for disbursement in connection with the costs of adversarial litigation pursued in the context of the process of registration of the EPA itself. The scheme of the Act is welfare oriented.”

74. For that reason, Whelan J went on to state (at para. 65): “An order for costs ought not normally be made in favour of or against a notice party or attorney who voluntarily elects to attend an application for registration of an EPA pursuant to the 1996 Act. There are no ‘winners’ in such an application which was foreshadowed from execution of the instrument by the donor and assented to by parties who freely agreed to assume their respective roles as attorney or notice party in pursuance of the welfare of the donor. It is important, in light of the public interest and welfare objects of the Act, that a court dealing with a contested section 10 application, adopts a conservative approach where litigation costs are sought out of the donor’s estate and otherwise keeps in sharp focus the public interest remit of the 1996 Act, as amended, when called upon to exercise its discretion in an inter partes costs application.”

75. It might be added to those observations that an attorney appointed as such in an EPA has a statutory obligation under s. 9(1) of the 1996 Act to make an application to the court for registration of the EPA where he or she has reason to believe that the donor is or is becoming mentally incapable. In that sense, while an attorney voluntarily agrees to his or her appointment as attorney under the instrument, the attorney is not actually voluntarily electing to bring the application for registration. When such an application is made, the attorney is doing so on foot of a statutory obligation to do so. This is in contrast to the position of a notice party who objects to the registration of an EPA. Notice parties under an EPA are given notice of the execution of the EPA and in this case the Objector took no issue with and relied on her appointment as notice party to make her objections to the registration of the EPA. She made her objections voluntarily in the sense that there was no equivalent statutory obligation on her to do so, as there was in the case of the Attorney to make the application for registration.

76. As stated by Whelan J, a court dealing with a contested EPA registration application must adopt a “conservative approach” where costs are sought to be paid out of the relevant donor’s estate and the court must have particular regard to the purpose of the 1996 Act and the public interest remit of that Act as outlined by her. That approach was particularly important in E v G in circumstances where the donor was alive and residing in a nursing home and where her assets were needed for her ongoing care. That is not a factor which is present in this case.

77. Having outlined the statutory provisions and the legal principles applicable to the award of costs under the 2015 Act and under O. 99 RSC, Whelan J explained that the process of application for registration of an EPA is inquisitorial and is directed to the welfare and interests of a donor who is alleged to have become mentally incapable. She explained that the “default position” should be as follows: “… Where welfare-oriented issues and concerns are raised by a notice party or any other interested party in an application of this kind, the information should be put before the court on affidavit with all supporting documentation and unless the absence of bone fides is established there should ordinarily be no cost consequences arising for the notice party.” (paras 84 and 85) When Whelan J referred to the principle that there should ordinarily be no “cost consequences” for the notice party, she was referring to the fact that ordinarily costs orders would not be made against the notice party who provided an objection. There is no application that the Objector pay the Attorney’s costs in this case.

78. Later in her judgment, Whelan J made the point that notice parties and other interested persons had to understand that the making of an application for registration of an EPA by an attorney “is not to be viewed as an opportunity for the notice parties to dredge up for plenary ventilation the accumulated inter-familial grievances, issues or disputes as may hitherto have developed between the parties” (para. 121). She noted that the stance of the objectors in that case had escalated the proceedings into a “full blown hearing, equivalent in many respects to an equity suit, lasting three days” (para. 122). As I noted earlier those observations have some resonance in the context of the objections advanced by the Objector in this case. However, since the court never got the opportunity of determining the application and deciding on those objections, owing to the death of the Donor, there is no question of the court making an order that the Objector pay all of the costs of the registration application which was what was at issue in E v G.

79. Whelan J confirmed that the default position in s. 169(1) of the 2015 Act applies to all “civil proceedings” and to inquisitorial applications which have become adversarial (as the EPA registration application became in that case and as it became in this case). The default position to which Whelan J was referring there, is that a party who is “entirely successful” is entitled to an award of costs against the unsuccessful party unless the court orders otherwise. As these proceedings became moot, neither the Attorney nor the Objector was “entirely successful” and nor was there any “event” which costs could follow. For that reason, the ultimate decision of the High Court and of the Court of Appeal in that case is not directly relevant or applicable to the present case. However, the guidance offered by Whelan J in the Court of Appeal is particularly helpful in terms of the need for the court to adopt a “conservative approach” when costs are sought from the estate of the donor and the need to ensure that at all times the purpose and public interest remit of the 1996 Act is served.

(d) Conclusions on the legal issues

80. In trying to draw these strands of authority and principle together, I am satisfied that where, as in this case, the application to register the EPA has become moot owing to the death of the Donor, an event entirely independent of the actions of the parties, it will generally not be appropriate for the court to make an order for all of the costs to be paid by one of the parties. However, in my view, the court does have a discretion to direct that some or all of the costs be paid out of the estate of the relevant donor where that is the “fairest outcome” in the particular circumstances of the case (to adopt the phrase used by Murray J in Hughes). In my view, that is consistent with the wide discretion which the court has in determining how the costs of such an application which has become moot should be determined.

81. I am also satisfied that it would not be inconsistent with the purpose of the 1996 Act (as outlined by Whelan J in E v G) and would not be inconsistent with the court adopting a “conservative approach”, for the court in the circumstances of this case to direct that the Attorney’s costs be paid out of the Donor’s estate. It is particularly relevant in that context that the Donor has died and, unlike the donor in E v G, no longer has a requirement for ongoing assets for his upkeep, maintenance and care. I am also satisfied that the limited costs advanced by the Objector should also be paid by out of the estate. It is also particularly relevant, in my view, that as the largest beneficiary under the Will of the Donor, the Attorney will bear the greatest burden of the payment of the costs out of the estate.

82. I should add that I would have been prepared to consider ordering that some of the costs incurred by the Attorney should be paid by the Objector having regard to the manner in which the Objector sought to deal with the costs issue initially and sought to prolong the proceedings by attempting to bring further motions for discovery and swearing further affidavits long after the proceedings had become moot and by raising issues in response to the costs application which were utterly unstatable and based on a fundamental misunderstanding of the scheme and objectives and purpose of the 1996 Act. However, the Attorney did not press any application that any of the costs should be borne by the Objector and so I will not make an order that she pay any of the costs.

(e) Conclusion on the quantum of costs

83. I have set out earlier the quantum of costs claimed by the Attorney which I am asked to direct be paid out of the estate of the Donor. The figure claimed is €20,848.00 (inclusive of VAT, counsel’s fees and outlay). As I indicated earlier, I afforded the parties an opportunity at the end of the hearing to try and narrow the difference between them on the appropriate figure for costs to be paid out of the Donor’s estate, in the event that I were to so order. Counsel informed me that the Attorney was prepared to reduce her claim for costs to €16,000.00 (inclusive of VAT and outlay) in order to resolve the matter without the need for a judgment of the court. However, the Objector was not prepared to move from her figure of €12,500.00.

84. I have carefully considered the objections raised by the Objector to the quantum of costs claimed by the Attorney, the detail provided in respect of the costs claimed and the material provided by the Attorney’s solicitor in support of the costs claimed. The Attorney’s solicitor initially provided a fee note which referred to counsel’s fees of €6,765.00 (inclusive of VAT) and the narrative of the work done by the solicitor for which the solicitor marked a fee of €10,209.00 (inclusive of VAT and outlay). The total sum claimed was €16,974.00. Counsel’s fee note contained a detailed breakdown of the fees charged by her.

85. Following further objections by the Objector to the detail provided by the Attorney’s solicitor in respect of the fees claimed by him, a more detailed narrative was provided by the solicitor. That contained a narrative of the work done by the solicitor from the time instructions were taken from the Attorney on 30 November 2023 up to the hearing date on 17 November 2025. It does contain a reasonable amount of information in relation to the voluminous amount of work done by the solicitor in dealing with the application to register the EPA and in then dealing with the objections raised by the Objector. That more detailed narrative was provided by the solicitor to the Objector on 13 November 2025. At the same time the solicitor provided to the Objector a copy of the s. 150 letter, dated 28 February 2025, which the solicitor had sent to the Attorney. That letter was sent before the notice of motion bringing the matter before the court was issued on 11 March 2025. The schedule to that letter indicated that the likely fees would be a total of €10,266.75. The letter also provided an indication as to how the solicitor’s fees would be calculated and his rate per hour. It also acknowledged the solicitor’s obligation to update the Attorney on her legal costs. The solicitor confirmed in his letter to the Objector of 13 November 2025 that at the time he sent the s. 150 letter he could not have anticipated the amount of additional work which was involved in dealing with the EPA registration application and that the Attorney was informed that costs were increasing as time progressed.

86. I have concluded, for the reasons set out earlier, that the Attorney’s costs should be paid out of the estate of the Donor, in the particular circumstances of this case. I could direct that the quantum of the Attorney’s costs be sent for adjudication by a Legal Costs Adjudicator under Part 10 of the 2015 Act. However, given the relatively small amounts involved (and the relatively small difference between the parties on the appropriate level of costs which could be paid out of the Donor’s estate), I have concluded that it would not be appropriate for me to order that the costs be adjudicated. To do so would lead to further cost and delay and would afford the parties yet another opportunity to ventilate the inter-familial or inter-sibling disputes between them. I do not think that it would be a reasonable exercise of my discretion to order that the Attorney’s costs be adjudicated. I am, in any event, satisfied, having considered the narratives provided by the Attorney’s solicitor in respect of his fees as well as the detailed fee note prepared by counsel (to which no objection was taken by the Objector) that the costs claimed by the Attorney are fair and reasonable and were reasonably incurred by the Attorney (for the purposes of s. 155 of the 2015 Act and Schedule 1 to that Act).

87. I have reviewed all of the documentation generated in respect of the EPA registration application and all of the affidavits sworn in connection with that application as well as the voluminous correspondence exchanged between the applicant’s solicitor and the Objector.

88. The application was before me on at least three occasions (7 April 2025, 20 October 2025 and 17 November 2025) before the hearing on costs on 18 February 2026.

It was also before two of my colleagues in the High Court (Heslin J and Dignam J) on various dates in May, June and July 2025.

89. I am satisfied that in all the circumstances, total costs of €20,000.00 (to include VAT and outlay and counsel’s fees) would be a fair and reasonable amount in respect of the Attorney’s costs, to include the additional costs incurred in having to have a hearing on costs on 18 February 2026 (the additional costs which would be incurred by having such a hearing were set out in the Attorney’s solicitor’s letter to the Objector of

9 January 2026). I am satisfied that the lesser sum of €16,000.00 which the Attorney was prepared to accept on 18 February 2026 was on the basis that agreement was reached that day and that it would not be fair to hold the Attorney to that figure in circumstances where the Objector was not prepared to agree the figure and it was necessary for the court to proceed to give judgment on the costs issue.

90. While the Objector did not expressly confirm that she would be seeking any sum from the estate in respect of the small legal costs and expenses identified in the Attorney’s solicitor’s letter to the Objector of 16 October 2025 (€517.00 for legal costs and €500.00 for expenses), in order to be fair to the Objector, it would be appropriate that I also direct those sums be paid to the Objector from the estate of the Donor.

10. Orders to be made

91. For the reasons set out in this judgment I will make the following orders:

(1) An order measuring the Attorney’s costs of these EPA proceedings in the total amount of €20,000.00 (to include VAT, outlay and counsel’s fees) and directing that that sum be payable to the Attorney out of the estate of the late HM (deceased).

(2) An order measuring the costs and expenses of the Objector in the total amount of €1,017.00 and directing that that sum be paid to the Objector out of the estate of the late HM (deceased).

(3) An order striking out these EPA registration proceedings and all motions issued in the proceedings.

(4) No further order.

92. This judgment is being delivered electronically. I will list the matter before me at 11am on 16 March 2026 for the purpose of making the orders set out in the previous paragraph.