Background
After Eileen McEvoy suffered a severe stroke in 2012, her husband, Peter McEvoy, and daughter, Linda McEvoy, instructed solicitors David Turner and later James McSweeney concerning potential medical-negligence proceedings. Summonses issued on Mrs. McEvoy’s behalf were not served within the permitted time, and no substantive clinical-negligence claim was ultimately pursued.
In April 2020, Peter and Linda McEvoy commenced professional-negligence proceedings in their own names against the solicitors, seeking damages corresponding to those Mrs. McEvoy allegedly could have recovered. They relied partly on an enduring power of attorney naming them as attorneys and on Peter McEvoy’s nomination as executor under his wife’s will. Mrs. McEvoy died in April 2021, and Peter McEvoy died in October 2022.
The High Court struck out the proceedings because the enduring power of attorney had never been registered, no grant of probate had issued when the action began, and the plaintiffs therefore lacked authority to sue for Mrs. McEvoy or her estate. Linda McEvoy appealed and also argued that she was entitled to judgment in default of defence against McSweeney.
The Court’s Holding
The Court of Appeal upheld the strike-out. Under section 7 of the Powers of Attorney Act 1996, the enduring power of attorney did not come into force until registration. Because it was never registered, the plaintiffs’ nomination as attorneys gave them no authority to commence proceedings for Mrs. McEvoy. Their family relationship likewise conferred no standing.
Peter McEvoy’s nomination as executor did not cure the defect because no grant of probate had issued. Any loss arising from the solicitors’ alleged failure to register the power of attorney belonged to Mrs. McEvoy, not personally to the plaintiffs, and would have had to be pursued by an authorised personal representative. The relevant limitation periods had expired, so amendment could not save the action. Section 7 of the Civil Liability Act 1961 also did not overcome the absence of standing and, in any event, excluded recovery for the deceased’s pain, suffering, and personal injury.
The court rejected the default-judgment argument. A court may determine a strike-out motion before addressing a motion for judgment in default of defence; once proceedings are struck out for disclosing no reasonable cause of action or because they are bound to fail, no defence is required and the default motion falls away.
Key Takeaways
- Nomination under an enduring power of attorney does not authorise an attorney to act before the instrument is registered as required by the 1996 Act.
- A person nominated as executor cannot litigate for a deceased person’s estate without the necessary grant; family relationship or involvement in giving instructions does not create standing.
- A pending default-of-defence application does not prevent the court from first striking out legally unsustainable proceedings.
Why It Matters
The decision underscores that procedural authority to sue is distinct from the possible merits of an underlying professional-negligence claim. Where the alleged loss belongs to another person or that person’s estate, proceedings must be commenced by a legally authorised claimant.
It also confirms that default procedures do not entitle a plaintiff to judgment on a claim that discloses no viable cause of action. Courts may address a dispositive strike-out application first, even where the defendant has not delivered a defence.