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Wright v Sullivan, Court of Appeal, 27 May 2005

2 June 2005
The issues

Case Management – Rehabilitation – Role of Clinical Case Manager in the Litigation

The facts

In December 1999 the Claimant was knocked down by a car in Manchester. Liability was compromised on a 73/30 basis with the Defendant accepting most of the blame. As a result of the accident the Claimant had suffered a severe concussive head injury resulting in brain damage causing physical and mental symptoms.

She had developed post traumatic epilepsy. She was fully capable of all acts of daily living but required daily supervision of her behaviour by others and would require daily care in the absence of her mother. She had fluctuating attention, concentration and memory. She had been badly beaten up in January 1999 and one of the issues in the assessment would revolve around the effect of this earlier incident. The Claimant applied for an interim payment which came before the High Court Judge.

The Claimant was awarded £50,000.00 by way of interim payment. The High Court Judge directed that a witness statement made by Tania Brown her Clinical Case Manager should recite that although she was a witness of fact she should treat herself as owing the same duties to the Court in the making of the statement as if she were an expert preparing a report to the Court. The Defendant appealed against the award of damages. The Claimant cross appealed against the Judge’s direction.

The decision

1. The Defendants had proposed initially that the interim payment application should be deferred and that a clinical Case Manager should be instructed jointly to consider the Claimant’s needs and to prepare a report. This was likely to take 6-8 weeks. The Defendants insurers favoured joint instruction because they believed that the need for the parties to co-operate and be open with each other was critical in a case of this kind and that a joint instruction would further this process; that a joint instruction would keep the costs of litigation under control and increase the prospects of settlement; that the parties would be able to discuss the case confidentially with their own expert witnesses and that the unilateral instruction of a clinical Case Manager would unbalance the process. The appointment, if not on a joint basis, in the context of contested litigation, would be contrary to the spirit of the CPR and the Court, the Defendant’s argued, should not hesitate to say so.

2. The Claimant’s advisors objected to a joint instruction “vehemently”. They argued that the suggestion was misconceived. The relationship between the clinical Case Manager and the Claimant had to be therapeutic. The Case Manager would be called not as an expert but as a witness of fact. She did not come under the Court’s jurisdiction as an expert witness and that it would be inappropriate that the Defendant should have direct access to such a therapeutic relationship.

3. The clinical Case Manager had to owe her duties to her patient alone. She had to win the patient’s trust and co-operation in what was being proposed. She had to make decisions in the best interest of the patient and could not be beholden to too masters. Any communications which the Case Manager had with the Claimant’s expert witnesses the dominant purpose of which did not attract litigation privilege would be disclosed as a matter of course.

4. The Defendant’s Counsel had argued that all communications between the representatives of either party and their expert witness and the Case Manager should be recorded and disclosed.

This could not be right however. If a Case Manager attended a conference with legal advisors at which advice was sought then the privilege was not the case manager’s to waive nor could the Court direct such a waiver.

5. The Judge had had no evidence before him about the practice of Case Managers or as to what problems if any, might be encountered in relation to the involvement of Case Managers and litigation brought by/or on behalf of their client. If experience came to show that there were problems which needed addressing it was desirable in the first instance that they be addressed amongst those concerned with a view to professional guidance being given rather than by Judges who had an imperfect grasp of all the possible ramifications of any new practice.

6. It was desirable to encourage as much openness in the exchange of information and views as possible and to avoid reverting to pre 1999 trench warfare. The Claimant’s advisors had done their client no favours by first stating that they “vehemently” objected to the Defendant’s insurers request for a greater degree of openness. However, both the Defendant’s propositions that the instruction of the Clinical Case Manager should be a joint instruction and that neither party should be permitted to have “behind closed doors” access to her had to be rejected, the appeal therefore had to be dismissed with costs.

Appeal dismissed; cross appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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