Loughlin v Singh [2013] EWHC 1641 (QB), [2013] MHLO 71
"On 28 October 2002, when he was 12 years old, the Claimant was seriously injured in a road traffic accident. He was riding his bicycle when he was struck by a vehicle driven by the First Defendant. This was a trial for an assessment of damages, in which a number of contested issues fell to be resolved. ... The parties are in dispute as to whether the Claimant has capacity to conduct litigation and manage his property and affairs. ... Therefore, I conclude, notwithstanding the legal presumption in favour of capacity, that the Claimant does not have capacity within the relevant legal definition. ... Annex: Professor Barnes' evidence is so unreliable that it should be rejected for the following reasons... District Judge Eldergill was unaware, when he made the order on 28 April 2010 appointing Mr Hugh Jones as the Claimant's deputy, that there was any medical evidence to the effect that the Claimant had capacity. He was not told about Dr Huddy's report, nor did he have any inkling of the circumstances, set out in detail above, in which Professor Barnes came to give his "revised" opinion, nor that no-one at Pannone had shown the report of Dr Huddy to Professor Barnes. ... All I need add is that the lamentable failures that occurred here, and the invidious position in which the judge in the Court of Protection was unwittingly placed, must never be repeated. The issue of capacity is of very great importance, and all involved must ensure that the Court of Protection has all the material which, on proper reflection, is necessary for a just and accurate decision."
External links
Ian Slater, 'Loughlin v Singh & Ors: assessment of capacity - conflict of interest?' (DWF, 19/6/13). This article includes the following comment: 'In this particular case in question Parker J ultimately concluded that the Claimant lacked capacity so, on one level, it could be argued that no harm had been done. The evidence was, however, very finely balanced and - by the date of the trial - there was a weight of expert evidence on both sides. Consider this, however: had Parker J not reached the conclusion that he did then difficult questions would have arisen as to the £40,000 worth of fees which the Court of Protection team had incurred since their instruction.'
Ian Slater, 'Loughlin v Singh & Ors: the duty of experts' (DWF, 19/6/13). This article includes the following comment: 'This raises important considerations both as to the duty of experts but also – given the particular U-turn performed by Professor Barnes - as to the Mental Capacity Act 2005. The Act provides at Section 1(2) that a "person must be assumed to have capacity unless it is established that he lacks capacity." It is surely somewhat concerning that Professor Barnes felt it appropriate to deprive an individual of his autonomy based, apparently, on nothing more than a conversation with his instructing solicitor.'