In this article following this morning's judgment in the case of Kristopher Loughlin (By his mother and litigation friend Barbara Anne Kennedy, formerly Loughlin) v (1) Kenneth Dal Singh (2) Pama & Co Ltd (3) Churchill Insurance Company, Ian Slater looks at the concerning reasons why the evidence of Professor Barnes, the Claimant's expert in neurological rehabilitation was rejected.
It seems appropriate to open with the full comments of Parker J on this point. In a specially prepared Annex to his judgment the judge stated:
- Professor Barnes' evidence is so unreliable that it should be rejected for the following reasons:
- In his report dated 22 January 2009 (this report was disclosed only on the last working day in the week before the trial began) Professor Barnes concluded that the Claimant had capacity: "I felt that he had sufficient grasp of the litigation and matters appertaining to property and his affairs. I do not feel that he needs to be deemed a Protected Party under the terms of the Mental Capacity Act. I note that this is the opinion of Dr Rosenbloom and Mr Baldwin." (My emphasis)
- In coming to that conclusion, Professor Barnes had discussed the matter "...in great detail..." not only with the Claimant, but also with the principal individuals who had been supporting him since his accident, namely his mother and stepfather. Although Professor Barnes "noted" the opinions of Dr Rosenbloom and Mr Baldwin, each of these doctors had in fact concluded that the Claimantlacked capacity. Professor Barnes in his oral evidence to the Court was unable to explain how he had come to misread their assessments. He could not explain why he had put down the opposite conclusion. He described his error as "...embarrassing..."
- On 6 October 2009 Professor Barnes produced a further report. This report did not mention at all the report of 22 January 2009 but was simply disclosed in the litigation as if it was his first report. In this report he expressed the conclusion "...on balance..." that the Claimant lacked capacity to manage the litigation and also to manage his own property and financial affairs. He held to and repeated this opinion in each of his subsequent reports. Until the Friday of the week prior to the trial, the Defendant was led to believe that this had always been his opinion.
- Some light is shed on the circumstances in which Professor Barnes came to "revise" his opinion by a manuscript note that he made on 25 September 2009. He had had a telephone conversation with a litigation solicitor at Pannone, who then had conduct of the file. The note read: "Capacity. Rosenbloom and Baldwin said lacked capacity, not had it. I did. Await Bev Wild [case manager] witness statement which will [illegible] - but, according to Professor Barnes, possibly "explain" or "point out" - his problems. Re-do. Then repeat with new date and sentence to explain that I did it in January. Then revisit with new information and say lacks capacity." (My emphasis).
- When Professor Barnes produced his report dated 6 October 2009, the report did not state that he had interviewed the Claimant and his mother and stepfather in January 2009. The report did not state that he had in any earlier report come to the opposite conclusion, and that he had since changed his mind, giving his reasons for the volte face.
- The report of 6 October 2009 furthermore implies that Professor Barnes had recently visited and interviewed the Claimant and his mother and stepfather, shortly before 6 October 2009. However Professor Barnes in his oral evidence had no clear recollection of making such a visit. He had no diary entry to corroborate such a visit. He relied instead on his intention to make a visit as set out in his manuscript note dated 25 September 2009 and on the fact that he was in Manchester on 6 October 2009 to make three other visits. I am not able to conclude that Professor Barnes did visit the Claimant shortly before 6 October 2009, for the principal following reasons.
- Professor Barnes was unable to produce any contemporaneous diary entry that he intended to visit or visited the Claimant at that time. None of the contemporaneous records [case management, support worker and occupational therapy] corroborate a visit from Professor Barnes. The records show that the Claimant went to Moston College and then to Manchester with Yvonne Ashworth [support worker] before returning home for lunch and then attending to his general practitioners. Neither Ms Ashworth nor the Claimant's mother, who spoke with the case manager on 6 October 2009, referred to any visit from Professor Barnes.
- The report of 6 October 2009 does not disclose any information about events occurring in the Claimant's life between January and October 2009. There is no reference, for example, to his A level results nor to any factual matters which might have been significant in terms of reaching a judgment on capacity. Save for the passage on capacity the text of the reports of 22 January 2009 and 6 October 2009 is in precisely the same terms. The section on capacity contains no new material that might have been obtained from the Claimant, his mother or step-father.
- I am not able to conclude with confidence that Professor Barnes made an independent assessment of the Claimant's capacity.
- In the light of the objective circumstances the manuscript note of 25 September 2009 strongly suggests that Professor Barnes was minded to change his conclusion on capacity given simply what he had been told about Dr Rosenbloom's and Mr Baldwin's opinions. In his report of 6 October 2009 Professor Barnes failed to state that he had made a previous report in which he reached the opposite conclusion, failed to state how he had reached that conclusion and failed to state the precise circumstances in which he had changed his mind. In essence, furthermore, the report of 6 October 2009 contains no material information that was not available in January 2009.
Professor Barnes had been instructed in the matter by Pannone LLP. He had initially visited the Claimant and prepared a report for the litigation solicitor dated January 2009. Within that report he concluded that the Claimant retained capacity to conduct the litigation and manage his financial affairs.
The report of January 2009 was not disclosed to the Defendant until one working day prior to the commencement of the trial of this action in January 2013. The report which had been disclosed during the course of the litigation was the revision of October 2009 wherein Professor Barnes had performed a "volte face" concluding that the Claimant lacked capacity to conduct the litigation and manage his financial affairs.
Between the two reports (which were identical save for the date and the U-turn in respect of capacity) Professor Barnes had a conversation with his instructing litigation solicitor. In evidence Professor Barnes was unable to confirm that prior to revising his January 2009 report he had revisited the Claimant. He knew from his invoice records that he was in Manchester [the Claimant resides in Manchester] on 6th October 2009 because he had seen three other claimants that day but he had no records confirming that he had seen the Claimant.
By way of explanation for the lack of records he stated in evidence that it was his practice not to make written notes and instead stated that he would usually stop in a layby on the way home and dictate his report(s).
In the absence of any evidence confirming that Professor Barnes had revisited the Claimant, Parker J was left with no alternative but to conclude that no such visit had been undertaken and, accordingly, as the judge indicated, we are left with the strong implication that Professor Barnes was minded to change his conclusion on capacity following merely his conversation with the Claimant's litigation solicitor.
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.
As clearly stated by Parker J within paragraph 11 of his Annex to the judgment there is no material information contained within the October 2009 report upon which Professor Barnes could base his volte face.
An expert's report must be prepared in compliance with the CPR:
- Give details of any literature or other material which the expert has relied upon in forming his opinion;
- Contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report;
- Make clear which of the facts stated in the report are within the expert's own knowledge;
- Where there is a range of opinion, summarise the range and give reasons for his own opinion;
- Contain a statement that the expert understands his duty to the court and has complied with that duty.
Clearly this would not appear to have happened in this case. This may be one isolated incident but nevertheless one is left with the impression that had insurers not been prepared to run this matter to trial this significant revelation causing concern regarding the actions of those involved would never have come to light.
Link to full facts and judgment - Loughlin v Singh & Ors  EWHC 1641 (QB) (19 June 2013)
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