Recognising former King's Counsel, David Heaton's role as trusted advisor in matters involving the Court of Protection
Legal Development 29 August 2023 29 August 2023
On 25 July 2023 and after a career spanning 40 years, the now former King’s Counsel David Heaton confirmed his retirement from practice at the Bar to concentrate on voluntary work as well as spend more time with his grandson. Having acted as a trusted advisor to the CILL group at Clyde & Co and as well as our valued clients throughout that time, we simply could not let him go without seeking his wisdom about the legacy which is Loughlin v Singh.
The majority of the interest surrounding this 2013 decision rightly focusses on the 20% reduction made to the past care and case management costs because the standard provided fell below that which could reasonably have been expected.
However the very last paragraph of the annex to the Judgment an important, and sometimes overlooked principle:-
“The issue of capacity is of very great importance and all involved must ensure the Court of Protection has all the material which, on proper reflection, is necessary for a just and accurate decision.”
Given access to and an understanding of the inner workings of the Court of Protection remain elusive for most, what, if anything, can a representative of the Defendant in catastrophic injury claims reasonably advise clients should do in order to achieve this?
In David’s view, “Whilst guidance in individual cases always depends on the factual circumstances, in general terms, the considerations arising from Loughlin remained as at the date I retired as relevant as when the judgment was first handed down”.
In Loughlin the Claimant, who was then aged 12 years sustained a brain injury in October 2002 in a road traffic accident when he was struck by a vehicle driven by the Defendant.
Liability was admitted.
By the time the Claimant reached his early 20s, some heads of damage had been compromised subject to approval; but others including Court of Protection and Deputyship costs were disputed because the parties did not agree he lacked capacity to manage property and affairs.
It was not until trial however the Defendant discovered when the application was made to appoint a Deputy, the Court of Protection was not provided with the entirety of the available expert evidence relating to the issue.
Initially, separate reports were commissioned from different experts: a neurological rehabilitation consultant by the Claimant’s litigation solicitor and a neuropsychologist by a Private Client solicitor, who was in-house to the firm dealing with the civil claim and highly experienced in Deputyship work.
Both concluded the Claimant retained capacity.
Nine months later, the Claimant’s litigation solicitor sought an updated report from the neurological rehabilitation expert which reached the opposite conclusion despite not completing a re-examination or reviewing any further information about him.
Indeed, the text of his two reports were almost identical save as to their opposing conclusions and the second report did not refer at all to the first report.
The situation was compounded by the fact this expert was not told about the separate report from the neuropsychologist and the Deputy was only provided with the second opinion of the neurorehabilitation consultant which was used to support the application to the Court of Protection.
As a result, the Court of Protection was placed, as Parker J. described it in the Annex, in an “…invidious position…” of appointing a Deputy in complete ignorance of the opposing opinions on the subject.
If this were not the case, Parker J. considered the Court of Protection would almost certainly have declined to determine the issue on paper and might have found the Claimant had capacity.
He therefore gave general guidance all available expert medical evidence on capacity should be disclosed whenever an application is being made to the Court of Protection for the appointment of a Deputy.
The guidance which historically David gave in general terms, but being tailored to the individual circumstances of each case, was that:
- Loughlin is relevant in cases in which there is an issue between the parties as to whether or not a Claimant has or lacks property and affairs capacity. In a case in which a Claimant’s brain injuries are so grievous that there is no dispute but that she/he lacks capacity, Loughlin is of no relevance.
- It is vital to obtain a baseline expert opinion on a Claimant’s property and affairs capacity as early as possible. This can be a discrete opinion on that issue alone provided it includes the full history and addresses capacity in full. There may be good reason why a Defendant may not wish to disclose a broader opinion on all aspects considered by that consultant (who may have expertise in neurology, neurological rehabilitation medicine, neuropsychiatry or neuropsychology) until the Claimant has disclosed her/his hand. Any such opinion must therefore be kept under review.
- If a Defendant obtains an expert’s report to the effect the Claimant retains property and affairs capacity then it is advisable to disclose it unilaterally and as soon as practicable to their opponent, together with an enquiry as to whether this is also the Claimant’s case.
- If not, the Defendant should establish whether it is intended to apply to the Court of Protection for the appointment of a property and affairs Deputy and, if so, the name of such deputy and contact details, whether the Claimant will disclose any expert evidence supporting such an application, and a request for confirmation, if an application is made, the expert opinion disclosed by the Defendant will be included with the evidence to be sent in support, citing Loughlin.
- If the Claimant’s solicitor identifies the intended Deputy but declines to give the confirmation requested, the Defendant’s should write directly to the Deputy, copying in the litigation solicitor, seeking the same confirmation. If that is not forthcoming, the Defendant should write to the Court of Protection directly copying in the intended Deputy and litigation solicitor and citing relevant details about the case and all and any contact details.
The purpose of all this is, in appropriate cases, to avoid an early under-informed decision being made by the Court of Protection that a Claimant lacks property and affairs capacity with the consequence a Deputy is then appointed which can result in significant financial consequences for a Defendant. Once a decision has been made, and if it is later accepted or decided to have been incorrect, it is often years before this can be reversed. In the interim significant avoidable costs will have been incurred.
We are grateful to David for his assistance.
Gemma Quinn is a senior associate in the catastrophic and large loss injury team and head of the Court of Protection Subject Matter Group.