Re HH (attorney’s application for retrospective approval) [2018] EWCOP 13

This was a complex case heard by Her Honour Judge Vincent in which she had to consider a retrospective application concerning large amounts of withdrawals and use of P’s money by the attorney.

It was quite clear that the attorney had breached his fiduciary duty.  Before the proceedings, some issues had been narrowed down and agreed, one of which was that a panel deputy would be asked to be appointed in place of the attorney.

The main issue for Judge Vincent was to establish what money the attorney had taken and which of it could be approved by the court.  It was clear that it was not an easy task. Judge Vincent did say it was easier to point out what was not agreed first.

This included wages paid to the attorney, which were made in a haphazard manner and the attorney had continued to take other payments from the Donor’s account for his living arrangements.  Living expenses of the attorney and his family, whilst he was living in Ireland.  Purchase of a laptop and printer for the attorney. Money used for a speeding fine, dental bills, art supplies, website costs, high level of grocery expenditure and bank charges.

Judge Vincent did authorise some gifting and gratuitous care payments.  In her judgment she stated “while I have been critical of the way in which the applicant carried out his responsibilities … I have accepted that the significant majority of payments sought to be ratified should be approved; I have ended up with a figure that is much closer to the applicant’s that the Respondent’s.  There is no need for bad faith to be established in order for there to be a departure from the usual rule, but for the avoidance of doubt, I do not find that TH has acted in bad faith in all the circumstances”.  So, she did not depart from the general cost rule and authorised costs of the proceedings to come from P’s estate.

(Author: Karon Walton)