Supreme Court dismisses appeal; High Court lacks jurisdiction to create trust without wardship finding.

THE SUPREME COURT

[Appeal No. 313/2008]

Laffoy J.

Dunne J.

Charleton J.

IN THE MATTER OF

F.D.

Judgment of Ms. Justice Laffoy delivered on 12th day of November, 2015

The genesis of and the issue addressed in the High Court order appealed against

1. The order of the High Court the subject of this appeal was made on 29th July, 2008 by Sheehan J. (the trial judge) in proceedings

entitled In the matter of F.D. (Record No. 2008/118MCA – WOC 1679). That order recites that the issue before the High Court was

the subject of a direction of the President of the High Court made on 4th December, 2007 that a preliminary issue set out in the order

be addressed by the High Court in accordance with the decision of the Supreme Court of 4th July, 2007. The preliminary issue

directed to be addressed was as follows:

“Does the High Court have jurisdiction (inherent or otherwise) not limited to and without exercising the jurisdiction

provided for under Section 9 of the Courts (Supplemental Provisions) Act 1961 [the Act of 1961] or the Lunacy Regulation

(Ireland) Act 1871 to establish a trust scheme or other form of arrangement as proposed in the draft deed of trust

between [F.D.’s] family and the Court in advance of a determination by a judge or jury as to whether [F.D.] is of unsound

mind and incapable of managing his person and property to protect the monies of [F.D.] where [F.D.] and [F.D.’s] family

object to the exercise of wardship jurisdiction.”

The order, which was made pursuant to a judgment delivered by the trial judge on 29th July, 2008, noted that the Court had

concluded that the High Court had no jurisdiction inherent or otherwise to create the said trust scheme and, accordingly, the Court

answered the issue in the negative.

2. In summarising the circumstances in which the Supreme Court ordered that issue to be tried, the starting point is the settlement

on 23rd October, 2001 of a plenary action in which F.D. was plaintiff (Record No. 1997/No. 9068P). When those plenary proceedings

commenced, F.D. was a minor and the proceedings were brought by him as a minor suing by his mother and next friend, B.D. However,

by 23rd October, 2001 F.D. had attained his majority. On that day the plenary action came before the High Court (Johnson J.) for

ruling, having been at hearing before another High Court judge for four days. The order of 23rd October, 2001 recited that counsel for

F.D. intimated to the Court that an application would be made in due course to the President of the High Court. It is clear that what

counsel intimated was that there would be an application made to the President of the High Court to have F.D. taken into wardship.

On 23rd October, 2001, Johnson J. approved the settlement in the sum of IR£3m and directed that the said monies be paid into Court

to the credit of the plenary action and the separate credit of F.D.

3. In fact, no application of the type envisaged in the order of 23rd October, 2001 was made to the President of the High Court after

the making of that order, although there was interaction between the solicitors for F.D. and the High Court and the registrar of wards

of court (the Registrar). In any event, ultimately, by the combined effect of orders of the High Court made by Finnegan P. on 20th

December, 2004 and 21st January, 2005 exercising his wards of court jurisdiction it was ordered that an issue was to be tried without

pleadings before a judge of the High Court and a jury sitting in Dublin, namely –

“whether or not the Respondent [F.D.] is of unsound mind and incapable of managing his person and property.”

Those orders were appealed to the Supreme Court.

4. However, before the appeal was heard F.D. and his parents, F.D. Senior and B.D., initiated plenary proceedings against the

Registrar, Ireland and the Attorney General in the High Court (Record No. 2004/2188P). An application for an interlocutory injunction

was brought in those proceedings seeking, in broad terms, injunctions to restrain the continuance of the wardship inquiry pending the

determination of those plenary proceedings. The application was refused. The judgment of the High Court (Kelly J.) is reported at

[2004] 3 I.R. 95. Those plenary proceedings have not been advanced by the plaintiffs therein to conclusion and are still pending.

They are mentioned because the judgment of Kelly J. on the interlocutory application is helpful in giving a fuller picture of what

transpired after the making of the order dated 23rd October, 2001 approving the settlement than is outlined above.

5. The appeal against the orders of 20th December, 2004 and 21st January, 2005 to the Supreme Court (Record No. 2005/37) was

prosecuted to finality. Judgment was given in the Supreme Court on 4th July, 2007 by Geoghegan J., with whom the other judges

(Fennelly and Kearns JJ) agreed. That judgment is reported at [2008] 1 ILRM 19. The position of the parents of F.D., F.D. Senior and

B.D., on that appeal was summarised by Geoghegan J. in his judgment (at p. 26) as follows:

“What the parents want is a determination by the High Court in advance of any consideration of the wardship issue as to

whether an appropriate trust or some other arrangement can be arrived at which would allow them reasonable control of

their child and that they be trusted within reason to decide how to apply the monies for the benefit of their son.

Obviously, there would have to be some supervision by the court. The contention is that it need not entail wardship.”

The outcome of the appeal was that the Supreme Court allowed the appeal and ordered that the case be remitted to the President of

the High Court for the purposes of conducting a preliminary inquiry of the kind F.D.’s parents required, the nature of which was

outlined in the judgment of Geoghegan J. and will be considered later.

6. Following the judgment and order of the Supreme Court dated 4th July, 2007, the matter was remitted to the President of the High

Court, who made an order on 15th October, 2007 in the original plenary proceedings (Record No. 1997/No. 9068P) directing the trial of

the issue outlined in paragraph 1 above. The parties to the hearing of that issue in the High Court were F.D., in essence acting

through his parents, F.D. Senior and B.D., the General Solicitor for Minors and Wards of Court (the General Solicitor) and the Attorney

General. As has been outlined earlier, the High Court answered the question posed in the issue in the negative. Before considering the

judgment of the High Court, which is reported at [2011] I.R. 75 (referred to hereafter as F.D. (No. 2)), it is appropriate to consider

the judgment of the Supreme Court delivered on 4th July, 2007 on the first appeal (referred to hereafter as F.D. (No. 1)).

Judgment of the Supreme Court in F.D. (No. 1)

7. In relation to the circumstances in which the orders of the High Court appealed against in F.D. (No. 1) had been made, Geoghegan

J. recorded (at p. 27) that there had been two notices of objection to a wardship inquiry filed on 8th October, 2004, one on behalf of

F.D. and the other on behalf of his parents. He recorded that the objections were quite detailed and raised some major constitutional

issues, of which he did not consider it necessary to give any detailed account. He stated that what they did raise, however, was the

issue as to whether, having regard to the nature of the parents and family circumstances, wardship would be necessary for the

protection of the monies in court. In relation to the process which led to the orders appealed against, Geoghegan J. stated that not

enough attention was paid to the fundamental and arguable objections which the parents had to the whole procedure. He continued

(at p. 27):

“Insufficient importance was attached to the persistence of those objections and to the fact that they could not be

characterised as in any way farfetched or frivolous. A narrow view was taken that in the wards of court proceedings a

preliminary issue could not be set down in advance of the hearing of the inquiry as to whether there were other avenues

open in relation to the protection of the appellant’s monies.

I have taken the view that the justice of the case requires that there be a trial of a preliminary issue of that nature and

that there is no jurisdictional problem about setting it down.”

Geoghegan J. then went on to explain the basis on which he had arrived at the conclusion that there was no jurisdictional problem.

8. Having reiterated (at p. 29) that he saw no legal impediment to an issue being tried in advance of the inquiry as to whether it was

open to the President “to protect the monies recovered by the appellant by means other than making him a ward of court and if so

whether such a course of action would be desirable”, Geoghegan J. went on to explain what he had in mind by the expression “by

means other than making him a ward of court” in the following passage (at p. 29):

“I have in mind the creation of a trust or some formal scheme between the court and the parents involving suitable

undertakings and suitable reporting arrangements. When I refer to a trust, I am not necessarily referring to it in its strictly

technical sense. It is obviously the case that in the ordinary way only the owner of property can create a trust in relation

to it and that owner cannot be an infant or of unsound mind. But some members of the court, at least, recall cases in

which other arrangements were made by former Presidents though it is only fair to say that there may never have been

formal argumentation as to the lawfulness or otherwise of such arrangements. I consider that it is only fair and just that

this matter should be argued and litigated, as the parents request, before the inquiry before judge and jury takes place.”

9. On the issue as to whether “other arrangements” had been made by former Presidents, Geoghegan J. gave the following direction

(at p. 30):

“The wardship jurisdiction has never been regarded as adversarial and, therefore I consider that the registrar of wards of

court and the office of the general solicitor for wards of court should be requested to make a thorough investigation as to

precedents.”

In fact such investigation was carried out and the results were before the High Court on the trial of the preliminary issue, as is clear

from the judgment of the trial judge in F.D. (No. 2).

Judgment of the High Court in F.D. (No. 2)

10. There were three parties on the hearing of the preliminary issue before the High Court: F.D., who was referred to as the

respondent; the General Solicitor for Minors and Wards of Court (the General Solicitor); and the Attorney General. In his judgment (at

para. 4) the trial judge recorded that F.D.’s legal team stated in the introduction to their submissions that submissions were made on

behalf of F.D. and his immediate family, that is to say, his parents and his three sisters. He also recorded (at para. 24) that counsel

for the Attorney General considered that he had a very limited role in respect of the matter before the Court, and pointed out that it

did not involve the determination of any question relating to the constitutionality of the wardship system.

11. In answering the question posed in the preliminary issue in the negative, the trial judge concisely addressed the four matters

which F.D. had relied on as supportive of the proposition that the High Court has jurisdiction to create a trust in the circumstances of

the case. He recorded that he had considered “the draft deed of trust” between F.D.’s family and the Court and found that the

document envisaged the Court establishing a trust. I assume that this was a reference to a document which has been furnished to

this Court by counsel for the defendant as “Suggested draft of Trust”, the contents of which will be outlined later.

12. The first point relied on on behalf of F.D. was that there existed at the time the preliminary issue was at hearing before the High

Court an undated Practice Direction made by the President of the High Court which provided that, where a person lacking the mental

capacity to deal with his or her affairs was entitled to funds less than €30,000 held by a financial institution, the President of the High

Court would, in certain circumstances, allow the funds to be paid to a family member of such a person rather than requiring that a

wardship application be brought. As to the existence of such a Practice Direction, the trial judge stated (at para. 30) that it did not

involve the establishment of a trust by the Court. He also identified the source of the jurisdiction as s. 68 of the Lunacy Regulation

(Ireland) Act 1871 (the Act of 1871), as amended by s. 4 of the Courts Act 1971 (the Act of 1971).

13. Secondly, the trial judge expressed his views on sixteen precedents which had been identified and reported on by the General

Solicitor in response to the direction given by the Supreme Court referred to at para. 9 above. He found that an examination of those

precedents revealed that in no instance was the High Court ever the settlor of a trust and on that basis he found no support in those

precedents for the contention of F.D. He does seem to have attached particular significance to the fact that at no time did the

President of the High Court become a party to the deed in any of the cases.

14. Thirdly, the trial judge considered the decision of the Supreme Court in In re D [1987] I.R. 449 (the D case). He quoted the

following passage from the judgment of Finlay C.J., with whom the other four judges of the Supreme Court concurred, on which

counsel for F.D. had placed considerable reliance (at p. 456):

“It is, I think, important to emphasise that the jurisdiction of the High Court to take persons of unsound mind into

wardship is and must always remain a discretionary jurisdiction. Where a person has property it is, in my view, open to the

President of the High Court, or to any judge exercising the jurisdiction on his designation, to conclude that wardship is not

necessary in any given circumstances either for the protection of that property or of the person of the respondent.

Similar considerations must apply to an application brought to admit to wardship a person with no property. One of the

matters on which the High Court must then exercise its discretion is as to whether wardship is necessary for the

protection of the person who is the respondent in such proceedings.”

The trial judge concluded that it does not follow from that passage, or indeed from any other part of the judgment, that the High

Court has inherent jurisdiction to create a trust. While he accepted the submission of counsel for the General Solicitor that the

decision in the D case is authority for the proposition that the jurisdiction of the High Court is broader than the jurisdiction conferred

by the Act of 1871, as a result of the parens patriae jurisdiction formerly exercised by the Lord Chancellor and now exercised by the

President of the High Court, he made it clear that he accepted that the submission only extends to the Court’s wardship jurisdiction

to include the admission to wardship of a person with no property who may require protection of his or her person.

15. Fourthly, the trial judge made observations in relation to the reliance by counsel for F.D. on the decision of the High Court

(Costello J.) in H.L. v. Governor and Company of the Bank of Ireland [1978] I.L.R.M. 160 (the H.L. case). His conclusion was that, as

the discretionary trust in that case was established by Costello J. pursuant to s. 117 of the Succession Act 1965 (the Act of 1965),

the decision does not lend support to F.D.’s case.

16. At a broader level, against the background of the argument made on behalf of F.D. that the High Court has jurisdiction to hear

every kind of justiciable matter and that the only exceptions are those matters removed from its jurisdiction by the Constitution or by

statute, the trial judge considered the concept of inherent jurisdiction by reference of the decision of the Supreme Court in GMcG v.

DW (No. 2) (Joinder of the Attorney General) [2000] 4 I.R. 1 (GMcG v. DW). The passages from the judgment of Murray J. which he

quoted will be considered later. He found that the passages in question were directly applicable to the issues before the Court. While

accepting the submission made on behalf of the General Solicitor that the full and original jurisdiction of the High Court is to deal with

justiciable controversies, he also agreed that the creation of a trust in the circumstances before him was not a justiciable

controversy.

17. On the basis of the foregoing reasoning, the trial judge concluded that the High Court has no jurisdiction, inherent or otherwise,

to create the trust scheme which F.D.’s family require be set up.

Hearing of the appeal

18. There are a number of features of the hearing of the appeal in this Court which it is appropriate to record. Prior to the hearing,

the Court had helpfully received comprehensive written legal submissions on behalf of F.D., the General Solicitor and the Attorney

General. On the hearing of the appeal, one legal team appeared on behalf of both the General Solicitor and the Attorney General.

19. In the written legal submissions filed on behalf of the Attorney General, which were dated 19th September, 2014, an argument

was made that this appeal is unnecessary. Reference was made to observations in the written submissions which had been filed

earlier on behalf of F.D. that the appeal “reflects an unhappiness long felt with the manner in which the wardship jurisdiction currently

operates”, and that “[the] appeal is brought in circumstances where the imperfections and frailties in the wardship system have not

been recognised or the necessary reforms made”. It was submitted that those contentions appeared to overlook the provisions and

significance of a Bill which had been published: Assisted Decision-Making (Capacity) Bill 2013 (the 2013 Bill). It was disclosed that a

proposal had been made to F.D.’s solicitors that the appeal be adjourned for mention to a date in 2015 in circumstances where it was

expected that the 2013 Bill should be enacted by the end of 2014, so as to avoid costs which might be unnecessarily incurred.

However, F.D.’s family were not agreeable to the proposal.

20. The 2013 Bill was not enacted before the end of 2014 and it is still not enacted. Coincidentally, the 2013 Bill was before Dáil

Éireann on the day before the hearing of the appeal in this Court, that is to say, on 21st October, 2015. At the commencement of the

hearing of the appeal, counsel on behalf of the General Solicitor and the Attorney General informed the Court that the 2013 Bill had

been passed by Dáil Éireann on the previous day. The Court was also informed that it was scheduled to go to Second Stage in the

Seanad on 10th November, 2015 (which has indeed taken place) and to Seanad Committee Stage on 24th November, 2015. Counsel

handed into Court a briefing document prepared by the Civil Law Reform Division of the Department of Justice and Equality dated 21st

October, 2015 outlining the provisions of the 2013 Bill, which I understand would have a bearing on the position of a person in similar

circumstances to F.D. after the enactment and commencement of the 2013 Bill. Once again, it was suggested that the appeal would

be moot when the relevant provisions were enacted and commenced. On that basis it was suggested that the appeal should be

adjourned until January 2016. When the views of F.D. and his family were elicited, it was made clear by their counsel that they

wished the appeal to be heard. Having considered the views of both sides, the Court determined that the appeal should be heard and

determined.

21. As regards the “Suggested draft of Trust” referred to at para. 11 above, at the hearing of the appeal there was put before Court

a file summary of the sixteen precedents identified by the General Solicitor following the direction of the Supreme Court in Dolan (No.

1), the precedents being lettered from A to P. The “Suggested draft of Trust” related to Precedent O. Two documents were furnished

to the Court in relation to Precedent O. One was an order of the High Court in plenary proceedings in which monies representing the

settlement of the action of the plaintiff were lodged in Court. In the curial part of the order, which was dated 23rd October, 1997, it

was ordered that the accountant of the High Court, subject to certain deductions, pay the balance of the monies in court to the

trustees to be dealt by them in accordance with the terms of a deed of trust, a copy of which was annexed to the order. The second

document furnished was a copy of a deed of trust, which was certified by the Registrar as being the deed of trust referred to in the

order. Understandably the copies of both documents put before this Court were redacted. However, it appears that the plaintiff in the

plenary proceedings was the settlor and three individuals, including his mother, were joined as trustees. In broad terms, the terms of

the deed of trust were that the trustees would hold the monies to be transferred to them out of the monies in court upon trust during

the lifetime of the plaintiff settlor to pay or apply the income of the trust fund for his benefit and to pay or apply capital for his care,

maintenance and benefit, and on his death to transfer the trust fund to his personal representative. Provision was made that the

trustees would have the type of powers one would expect, for example, powers in relation to investment of the trust funds. The

appointment of new trustees had to be ratified by the President of the High Court. The trustees undertook to account to the

President of the High Court on an annual basis for the management of the trust funds. There was provision that the trustees could

apply at any time directly to the President of the High Court for directions on the management of the trust fund. As I understand it,

the wish of the family of F.D. is that a trust in similar terms be put in place in relation to the balance of the monies and investments

representing F.D.’s settlement of his plenary proceedings.

Discussion of and conclusion on the core issue

22. A very net question arises on the preliminary issue. It is whether the High Court, in circumstances which suggest that F.D. is not

capable of managing his own affairs but has not been the subject of an inquiry as to whether he is or is not capable of managing his

affairs, has jurisdiction to sanction, so as to give efficacy to, a trust scheme in relation to assets he has acquired in consequence of

the settlement of the plenary action. In answering that question, a proper understanding of the decision of this Court in the D case is

of prime importance.

23. At issue in the D case was whether the High Court has jurisdiction to take into wardship a person of unsound mind whose person

requires protection and management but who is not entitled to any property requiring such protection or management. It was held

that such a jurisdiction does exist, but it is not a jurisdiction conferred or delimited by the Act of 1871. Rather, it is part of the

general protective jurisdiction over persons of unsound mind which is vested in the High Court by s. 9 of the Act of 1961.

24. In his judgment in the D case, Finlay C.J. stated (at p. 452) that the jurisdiction of the High Court in lunacy matters is provided

for in s. 9 of the Act of 1961 and he went on to quote subss. (1) and (2) of s. 9 which provide as follows:

“(1) There shall be vested in the High Court the jurisdiction in lunacy and minor matters which –

(a) was formerly exercised by the Lord Chancellor of Ireland,

(b) was, at the passing of the Act of 1924, exercised by the Lord Chief Justice of Ireland, and

(c) was by virtue of subsection (1) of section 19 of the Act of 1924 and subsection (1) of section 9 of the Act of

1936, vested, immediately before the operative date in the existing High Court.

(2) The Jurisdiction vested in the High Court by subsection (1) of this section shall be exercisable by the President

of the High Court or, where the President of the High Court so directs, by an ordinary judge of the High Court for

the time being assigned in that behalf by the President of the High Court.”

Finlay C.J. then summarised the effect of s. 9 as follows (at p. 453):

“I am satisfied that this section must be construed as vesting a jurisdiction in the High Court, as both sub-sections 1 and

2 of it describe it as doing, the extent of which jurisdiction is described and identified by subclauses (a) and (b) by

reference to jurisdictions formerly exercised, and by subclause (c) by reference to jurisdictions previously vested in the

former High Court.”

In stating that the section must be construed as “vesting a jurisdiction” in the High Court, it is clear from the next sentence of the

judgment that Finlay C.J. was drawing a distinction between a provision such as s. 19 of the Act of 1924 providing that jurisdiction

“shall be transferred”, on the one hand, and a provision such as s. 9 of the Act of 1961, which was concerned with directly vesting,

as distinct from transferring, jurisdiction, on the other hand.

25. In setting out his reasons for concluding (at p. 454) that there is vested in the High Court a jurisdiction, where necessary and

appropriate, to take into wardship a person of unsound mind whose person requires protection and management, but who is not

entitled to any property which requires protection or management, Finlay C.J. analysed the jurisdiction on lunacy matters exercised by

the former Lord Chancellors of Ireland by reference to two decisions dating from 1892: In re Birch (1892) 29 L.R. Ir. 274; and In re

Godfrey (1892) 29 L.R. Ir. 278. Having done so, he stated (at p. 455):

“I am driven by these two decisions and by the statement of a former Lord Chancellor of Ireland as to what his

understanding of his jurisdiction was and indeed the exercise by him of it, to the conclusion that it extended beyond the

taking into wardship of persons who had property and the management and protection of their property as well as the

protection of their person. Such a construction of the jurisdiction in lunacy matters vested by the Act of 1961 in the High

Court seems to me to obtain significant support from a consideration of the provisions of Article 40, s. 3, sub-s. 2 of the

Constitution where the obligation imposed on the State by its laws to protect as best it may from unjust attack and in

the case of injustice done to vindicate the life and person of every citizen is put in equal place with the obligation to

protect and vindicate the property rights of every citizen.”

26. The statement of a former Lord Chancellor of Ireland referred to in that passage was the statement of Ashbourne L.C. in In re

Birch, which was quoted earlier by Finlay C.J. ( at p. 454) and in which the jurisdiction conferred by the terms of the “Queen’s Letter

in Lunacy”, which was addressed to each successive Lord Chancellor, was quoted in part and explained. Explaining it, Lord Ashbourne

stated that the words of the document amounted to –

“. . . an express delegation by the Crown under the Sign-manual of its prerogative jurisdiction in Lunacy to the Lord

Chancellor. The single purpose of the Crown is to benefit this afflicted class by confiding them to the care of its highest

Judge and one of its greatest officials. There is no restriction by which the jurisdiction of the Lord Chancellor is confined

to any particular section of this afflicted class. The parental care of the Sovereign extends over all idiots and lunatics,

whether so found by legal process or not.”

In quoting that passage, the clear objective of Finlay C.J. was to identify the jurisdiction formerly exercised by the Lord Chancellor of

Ireland. Having done so, he had identified a jurisdiction which the Oireachtas expressly vested in the High Court by virtue of s. 9(1) of

the Act of 1961. In other words, the source of the present jurisdiction of the High Court which was formerly exercised by the Lord

Chancellor is s. 9 of the Act of 1961, by virtue of which the Oireachtas vested that jurisdiction in the High Court. Reliance on

succession to the royal prerogative does not arise.

27. The passage from the judgment of Finlay C.J. (at p. 456), which was quoted by the trial judge and which is quoted at para. 14

above, is concerned with the exercise of the jurisdiction to take a person into wardship rather than with whether the jurisdiction

exists. In both examples given in that passage it had been found that wardship jurisdiction did exist: where the person to whom the

inquiry relates has property, in which case the jurisdiction exists under the Act of 1871; and where the person has no property, in

which case the jurisdiction exists by virtue of s. 9(1) of the Act of 1961. In my view, the trial judge was correct in stating that it

does not follow from that passage that the High Court has an inherent jurisdiction to create a trust.

28. At the core of the submissions advanced on behalf of F.D. that the High Court does have jurisdiction to establish a trust scheme

is the contention that the discretion in exercise of the wardship jurisdiction described by the Supreme Court in the D case

encompasses the inherent jurisdiction of the High Court otherwise recognised in Article 34.3.1 of the Constitution, which provides:

“The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all

matters and questions whether of law or fact, civil or criminal.”

Further, it is contended that in the context of the development and expansion of the High Court’s jurisdiction in the exercise of the

wardship jurisdiction following the judgment in the D case, the discretionary and inherent jurisdiction of the High Court contemplates

circumstances where the family of an affected person may propose a trust or trust like arrangement to be considered by the High

Court in the exercise of that jurisdiction. In the light of the analysis of the judgment of Finlay C.J. in the D case set out above, those

contentions are not consistent with what this Court determined in the D case.

29. Apart from that, it was submitted on behalf of the General Solicitor and the Attorney General that the High Court does not have

the inherent jurisdiction asserted on behalf of F.D. in reliance on the judgment of the Supreme Court in GMcG v. DW. The issue being

addressed in that case was the jurisdiction of the courts to join the Attorney General in proceedings pursuant to s. 29 of the Family

Law Act 1995 and, in particular, whether the courts could be called upon “to exercise a unspecified inherent jurisdiction in the face of

the jurisdiction delineated by the Oireachtas in s. 29 concerning the Attorney General as a party”. In the first passage from the

judgment of Murray J. quoted by the trial judge in his judgment, Murray J. stated (at p. 26):

“The concept of inherent jurisdiction necessarily depends on a distinction between jurisdiction that is explicitly attributed

to the courts by law and those that a court possess implicitly whether owing to the very nature of its judicial function or

its constitutional role in the administration of justice. The interaction between the express jurisdiction of the courts and

their inherent jurisdiction will depend in each case according to the scope of the express jurisdiction, whether its source is

common law, legislative or constitutional, and the ambit of the inherent jurisdiction which is being invoked. Inherent

jurisdiction by its nature only arises in the absence of the express.”

Later, in a passage quoted in part by the trial judge, Murray J. stated (at p. 27):

“Where the jurisdiction of the courts is expressly and completely delineated by statute law it must, at least as a general

rule, exclude the exercise by the courts of some other or more extensive jurisdiction of an implied or inherent nature. To

hold otherwise would undermine the normative value of the law and create uncertainty concerning the scope of judicial

function and finality of court orders. It may indeed be otherwise where a fundamental principle of constitutional stature is

invoked against a statutory or regulatory measure determining jurisdiction, but that is not the case here.”

30. Since the decision in F.D. (No. 2) in the High Court, those passages from the judgment of Murray J. in GMcG v. DW have been

considered in this Court in the judgment of Clarke J. in Mavior v. Zerko Limited [2013] 3 I.R. 268 (the Mavior case), where the issue

was whether a defendant in High Court proceedings was entitled to security for costs against a plaintiff which was an unlimited

company resident within the State. Having quoted the passages from the judgment of Murray J. in GMcG v. DW quoted above, Clarke

J. stated (at para. 17):

“It seems to me that what Murray J. cautioned against in the passages cited was the creation of parallel jurisdictions, for

resolving much the same area of controversy, founded on, on the one hand, existing law and, on the other hand, an

asserted inherent jurisdiction. As Murray J. pointed out, to attempt to invoke an inherent jurisdiction of the courts so as

to go beyond delineation specified, in a constitutionally permissible way, in a statute, would be for the courts to trespass

on the legislative role of the Oireachtas. If, in a constitutionally permissible way, the Oireachtas have defined the limits of

a particular jurisdiction then it is not for the courts to extend those limits by invoking a vague ‘inherent jurisdiction’.”

31. On the procedural circumstances before him in the Mavior case, Clarke J. was addressing a jurisdiction conferred by Order 29 of

the Rules of the Superior Courts 1986 (the Rules). He considered the situation in which the scope of a particular jurisdiction is

regulated in part by the Rules and in part by case law under the Rules and he stated (at para. 20):

“. . . it seems to me that the real question which the court should ask itself in a case such as this is as to whether any

proposed evolution of the interpretation of the scope of the power amounts to a permissible and legitimate exercise of the

courts proper interpretative role. If so then the scope of the power regulated by the rule may be reinterpreted. If not

then a rule change or, in some cases, legislation will be required. It is not appropriate that such issues be addressed by

the creation of a parallel ‘inherent jurisdiction’. What would the point be of an elaborate analysis of the circumstances in

which an order of the type under consideration in this case could be made under the Rules if it were possible to by-pass

the rules and the existing case law altogether by invoking a separate inherent jurisdiction. . . . If it would not be

appropriate, for whatever reason, to engage in revisiting the scope of the jurisdiction under the Rules then it does not

seem to me that the same end can properly be achieved by using the backdoor of an alleged inherent jurisdiction.”

Clarke J. in the next paragraph (para. 21), to which counsel for F.D. attached significance, did recognise that there might be, in other

circumstances not present in the case before him, a situation where the Rules imposed an express restriction which the Court viewed

as inappropriate having regard to the powers which the Court enjoys for reasons such as those identified by Murray J. inn GMcG v.

DW. However, he went on to consider the limits on the extent to which the Rules can properly limit the court’s inherent jurisdiction or

its express statutory jurisdiction. His analysis of the limits of the Rules as secondary legislation, in my view, is not of any relevance to

the question this Court has to resolve.

32. On this appeal the issue is whether there exists, alongside the wardship jurisdiction expressly vested by statute in the High Court,

an inherent jurisdiction, which exists outside the wardship jurisdiction, to enable and regulate the protection of the property of a

person who may lack mental capacity. As was established with clarity by the decision of this Court in the D case, the current

jurisdiction of the High Court in matters involving mental incapacity is the jurisdiction expressly vested in the High Court by the

Oireachtas by virtue of subs. (1) of s. 9 of the Act of 1961 and exercisable in the manner stipulated in subs. (2) of that section.

Neither the nature of the High Court’s judicial function nor its constitutional role in the administration of justice, in my view, permits

the recognition of an inherent jurisdiction in the High Court to make provision for the protection of persons with mental incapacity

outside the wardship process by, for example, sanctioning the establishment of a trust to protect the assets of a person believed to

be incapable of managing his or her own property affairs. The rationale underlying the judgment of Murray J. in GMcG v. DW and of

Clarke J. in the Mavior case makes it clear why such recognition is not permissible. No fundamental principle of constitutional stature

has been invoked to justify a different conclusion. The effect of a finding that such an inherent jurisdiction exists by this Court would

be, in the words of Clarke J., “to trespass on the legislative role of the Oireachtas”.

33. The consequence of the conclusion in the next preceding paragraph is that no inherent jurisdiction of the type advocated on

behalf of F.D. exists in the High Court and the trial judge was correct in answering the question posed in the preliminary issue in the

negative. For completeness, however, the matters which it was contended on behalf of F.D. support a contrary view will be

considered.

Practice Direction

34. While s. 68 of the Act of 1871 was stated by the trial judge to be the source of the jurisdiction of the President of the High Court

to make the practice direction, which counsel for F.D. pointed to as supporting the existence of an inherent jurisdiction of the type

advocated, in my view, that statement is not correct. Section 68 conferred power on the Lord Chancellor, where property of a person

lacking mental capacity did not exceed £2,000 in value or £100 per annum, to apply it for the person’s benefit in a summary manner,

without inquisition. The thresholds provided for in s. 68 were amended by the Oireachtas in s. 4 of the Courts Act 1971, by

substitution of £5,000 for £2,000 and £300 for £100. The Practice Direction in existence at the time of the hearing in the High Court

of F.D. (No. 2), as outlined by the trial judge, provided that where a person lacking mental capacity to deal with his or her affairs was

entitled to funds less than €30,000 held by a bank, building society or other financial institution, the President of the High Court

would, in certain circumstances, allow the funds to be paid to a family member of such a person rather than requiring that a wardship

application be brought. The Practice Direction then set out the procedural steps to be taken. In fact, since the decision of the High

Court in F.D. (No. 2) the Practice Direction was amended in late 2009 to apply to estates below a threshold of €50,000.

35. Although, as counsel for the General Solicitor and the Attorney General suggested, the Practice Direction and the amendment

thereof in all likelihood were pragmatic solutions, it seems to me that it has not been established that the President of the High Court

had or has jurisdiction to vary the thresholds stipulated in or the effect of s. 68 by a Practice Direction. In any event, the existence

of the Practice Directions cannot be regarded as being reflective of the existence of an inherent jurisdiction in the High Court to

sanction the establishment of trusts in relation to the property of individuals believed to lack mental capacity outside the wardship

process as currently regulated by legislation.

Sixteen Precedents

36. The sixteen precedents identified by the General Solicitor pursuant to the direction of the Supreme Court in F.D. (No. 1) also

appear to be based on the adoption of a pragmatic approach, as distinct from the application of existing jurisprudence. It was

emphasised on behalf of the General Solicitor that in all but two of the precedents the creation of trusts was approved by the Court

for the benefit of individuals who were not of unsound mind and incapable of managing their person or affairs, but who required some

level of protection. The two exceptions, it was submitted, were, in one case, specific to its particular facts and, in the other case,

characterised by divergence of medical opinion. Counsel for the General Solicitor and the Attorney General conceded that, perhaps,

the jurisdiction of the High Court was exceeded in the approach adopted in the sixteen precedents and, in particular, that, perhaps,

there was an error in the two exceptional cases. However, he emphasised that the function of this Court is to determine the

applicable law in answering the question in the preliminary issue and he submitted that the precedents are not of assistance in making

that determination.

37. Despite the very helpful work done by counsel for F.D. in summarising the sixteen precedents and, in particular, in drawing the

Court’s attention to correspondence between the Registrar and other parties involved, including the General Solicitor and the plaintiff

settlor’s solicitors, which preceded the making of the order of 23rd October, 1997 in relation to Precedent O, I have come to the

conclusion that it is not appropriate for the Court to find that the precedents or any of them are reflective of the existence of the

inherent jurisdiction advocated on behalf of F.D. in determining the question raised as a preliminary issue. Beyond that, no view is

expressed in relation to the sixteen precedents.

Decision of High Court in H.L. case

38. In the H.L. case, the High Court was concerned with an application under s. 117 of the Succession Act 1965. I think it is true to

say that the Court has a unique statutory function under s. 117. Sub-section (1) thereof provides:

“Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his

moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court

may order that such provision shall be made for the child out of the estate as the court thinks just.”

The facts outlined in the judgment of Costello J. in the H.L. case disclose that the eldest son of the testator, Maurice, was at the

time of the testator’s death “suffering to a serious degree from paranoid schizophrenia and was (and, unfortunately, still is) incapable

of managing his own affairs”. In relation to the application of s. 117 to the circumstances of Maurice, Costello J. stated (at p. 165):

“Section 117 of the Act permits me to make such provision out of the estate as I think is just and I consider that I am

empowered to make provision for Maurice by means of the creation of a discretionary trust and that this would be just

both to Maurice and the other children. “

Before reaching that conclusion, Costello J. had regard to the factors to which he was required by subs. (2) of s. 117 to have regard.

Sub-section (2) provides as follows:

“The court shall consider the application from the point of view of a prudent and just parent, taking into account the

position of each of the children of the testator and any other circumstances which the court may consider of assistance

in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other

children.”

39. Having outlined Maurice’s difficult circumstances, Costello J. concluded that a just and prudent parent, in fulfilling his moral duty

to make provision for Maurice in those circumstances, would establish a discretionary trust in his will and appoint as its beneficiaries

not only Maurice but also the testator’s other children. That approach would enables the trustees to look after Maurice’s interests

during his life and to care for the other children according to their needs, if Maurice did not require the entire income in any particular

year.

40. The jurisdiction conferred on the Court by s. 117 of the Act of 1965, the making of proper provision for a child out of the estate

of a testator in circumstances where the testator has failed in his moral duty to make such a provision in accordance with his means,

in my view, is not at all analogous to the jurisdiction conferred by legislation on the High Court in relation to the administration and

proper management of the person and property of an individual who, by reason of mental incapacity, is incapable of managing his or

her own affairs. The decision in the H.L. case, accordingly, is of no relevance to the determination of the question posed in the

preliminary issue.

Order

41. In the closing paragraph of his judgment, the trial judge acknowledged that it was clear that the family of F.D “have a principled

objection to wardship which they find intrusive”. He also acknowledged that they “are also totally committed to [F.D.’s] wellbeing”.

That is undoubtedly the case and is to be admired. However, the trial judge found that he was obliged to conclude that the High

Court has no jurisdiction, inherent or otherwise, to create the trust scheme the family require. For the reasons outlined above, I am

satisfied that his conclusion is correct in law.

42. Accordingly, there will be an order dismissing the appeal. The consequence is that the order of the High Court dated 29th July,

2008 in which the preliminary issue is outlined and is answered in the negative stands.