RE a mentally incapacitated person CKY

RE a mentally incapacitated person CKY

The court held that a Guardianship Order does not substitute for a Part II order and that solicitors have a duty to advise and, on a fair assessment, a Part II application should have been brought; consequently the existing conclusion of no order as to costs is confirmed and the solicitors' undertaking not to charge the Applicant for unrecovered costs stands.

Citation
[2025] HKCFI 393
Parties
Applicant (mentally Incapacitated Person): CKY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 January 2025
Case Number
HCMH41/2024
Procedural Posture
Part II Application Under the Mental Health Ordinance (cap 136) / Hearing in Chambers — Decision
Outcome
No order as to costs; solicitors' undertaking not to charge Applicant for unrecovered costs confirmed; prohibition on publication lifted.
Legal Topics
Part II Application, Guardianship Order Vs Part II Order, Costs of Proceedings, Solicitor's Duty to Advise, Publication Prohibition
Source Language
EN
Mental Health Law Guardianship Costs Law Professional Conduct of Solicitors Part II Application Guardianship Order Vs Part II Order Costs of Proceedings Solicitor's Duty to Advise +1 more

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Parties

CKY

Applicant (mentally Incapacitated Person)

Procedural Posture

Part II Application Under the Mental Health Ordinance (cap 136) / Hearing in Chambers — Decision

Legal Issues

  1. 1 Whether a Guardianship Order is a substitute for a Part II order
  2. 2 Whether costs of the Part II application should be paid out of the MIP's estate
  3. 3 Whether solicitors were bound by client instructions not to pursue a Part II application

Ratio Decidendi

The court held that a Guardianship Order does not substitute for a Part II order and that solicitors have a duty to advise and, on a fair assessment, a Part II application should have been brought; consequently the existing conclusion of no order as to costs is confirmed and the solicitors' undertaking not to charge the Applicant for unrecovered costs stands.

Court Disposition

No order as to costs; solicitors' undertaking not to charge Applicant for unrecovered costs confirmed; prohibition on publication lifted.

Orders

  • No order as to costs.
  • Solicitors' undertaking not to charge the Applicant for costs not reimbursed from the estate is confirmed.