Delivering judgment in the case, Mr Justice Garrett Simons also considered the issue of whether the proceedings were properly pursued on behalf of the plaintiff. The plaintiff was subject to court orders under mental health legislation in England which were made prior to the institution of proceedings in the plaintiff’s name. It was only later that a next friend was appointed on application to the Master of the High Court, which the court determined was unsatisfactory.

Background

The plaintiff was a 60-year-old man who alleged that he had been sexually abused as a child by the first defendant while attending school operated by the second defendant. It was claimed that the abuse took place in 1974 and 1975. Personal injuries proceedings commenced in 2008.

The plaintiff was habitually resident in England from the 1980s. In 2007, the Court of Protection of England and Wales made an order that the plaintiff lacked capacity to manage his own affairs. Plymouth County Council was appointed to act as deputy to the plaintiff to manage his affairs, but was not authorised to conduct legal proceedings in the plaintiff’s name.

The plaintiff suffered from Korsakoff’s Syndrome, which caused him to have very severe memory loss. After the plaintiff’s Irish solicitors learned of the Court of Protection orders, an application was made to the Master of the High Court to amend the title of the proceedings. The order was duly made and the plaintiff’s sister continued to act as next-friend in the matter.

A full defence was delivered in the case, with the defendants variously claiming that the action was statute-barred, that the school was not vicariously liable for the abuse and that other abusers were not pursued which meant that the plaintiff had to be treated as a concurrent wrongdoer. Eventually, a settlement offer of €350,000 was made by the school.

It was an express term that the offer was provided without an admission of liability. It was also envisaged that an application would be made to admit the plaintiff to wardship for the purpose of managing the money, although Plymouth County Council confirmed it had authority to manage the settlement monies.

High Court

Mr Justice Simons began by assessing the reasonableness of the settlement offer. It was noted that such an assessment was conducted without the benefit of a full hearing and that the court therefore was required to identify potential weaknesses in the claim which might affect the outcome of proceedings.

It was held that there was a strong likelihood that the plaintiff’s action would be dismissed at trial. First, it appeared that the action was statute-barred, with many years passing since the plaintiff had obtained maturity and expressed a desire to pursue a claim. As such, it was unlikely that the plaintiff was labouring under a “disability” within the meaning of the Statute of Limitations 1957 to stop time running.

Further, the plaintiff faced “possibly insurmountable” difficulties in proving the abuse occurred as the plaintiff was no longer competent to give evidence. Since the action was likely to fail, the €350,000 was excellent, the court held.

Next, the court considered the issue of whether proceedings were properly pursued by the plaintiff’s next friend. It was noted that the application to amend the title of the proceedings should not have been made to the Master, but rather a High Court judge. Further, the motion was not grounded on an updated medical report which addressed the issue of capacity. Instead, the application was made based on a “perfunctory affidavit” from the plaintiff’s solicitor.

As such, the court held it was necessary to make its own assessment of whether the proceedings were properly pursued by the next friend. The court noted that the Rules of the Superior Courts were silent on the criteria for assessing whether a vulnerable person, who was not a ward of court, was of “unsound mind”.

On the facts of the case, the court was satisfied that the plaintiff lacked capacity to make an informed decision on the settlement of the action. The material before the court established that the plaintiff suffered from a serious mental illness which caused him significant impairment. The court also had regard to the findings of the Court of Protection pursuant to the Hague Convention on the International Protection of Adults. Accordingly, the plaintiff fulfilled the criteria for being of unsound mind.

Further, it was held that, in general, legal proceedings had to be pursued by the committee of a ward, subject to sanction by the High Court. If a third party could conduct litigation on a ward’s behalf without reference to the committee, this could create a conflict, the court said (see Beall v. Smith (1873) L.R. 9 Ch. App. 85).

However, in the present case, the next friend was personally liable to meet any adverse costs order and acted at her own peril. The approval of the settlement would accrue to the benefit of the plaintiff and was conducted with the oversight of the court.

The court was satisfied that it was appropriate to direct payment of the monies to Plymouth County Council rather than to allow a wardship application to take place in Ireland. There was simply no necessity for the Irish courts to replicate protection and there was a risk of conflicting orders.

Conclusion

The €350,000 settlement was approved and payment was to be made to Plymouth County Council as deputy for the plaintiff. The settlement also provided for the plaintiff’s costs to be paid by the second defendant.

M.K. v. D.M and Anor. [2022] IEHC 500