Wright v Sullivan

This is an appeal by the defendant Kevin Sullivan from an order made by Wakerley J on 11th November 2004 whereby he declined to impose any conditions on the order he made for the payment of £50,000 to the claimant as an interim award of damages pursuant to CPR 25.7. The claimant cross-appeals against his direction that any witness statement made by Tanya Brown, her clinical case manager, should recite that although she is 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 appeal and cross-appeal raise novel issues to be determined in relation to the status of a claimant’s clinical case manager in the context of contested litigation. Before I consider these issues I must first say something about the facts of the case.

The claimant was born in June 1984 and is now 20 years old. She grew up normally, but she had problems in learning and had to have one to one tuition in three core subjects. She was badly beaten up, however, in January 1999, when she was 14 years old, and one of the issues on the assessment of damages will revolve around the effect of this earlier incident. She was admitted to a local hospital suffering from bruising of the head, but a neurologist, Professor Neary, ascertained in February 2002 that she did not suffer from any impairment of her concentration or memory or from any behavioural disorder as a result of this incident.

Eleven months later she was knocked down by a motor-car driven by the defendant while she was crossing the Manchester-based carriageway of Princess Parkway on 31st December 1999. A two-day trial on issues of liability was fixed for the end of July 2004, but in the event liability was compromised on a 70/30 basis, with the defendant accepting most of the blame. The issues with which we are now concerned arose out of the first of the case management conferences directed towards the assessment of damages.

The claimant’s statement of case is based on the findings in Professor Neary’s February 2002 report. It records that as a result of the accident she sustained a very severe concussive head injury resulting in brain damage manifested in physical and mental symptoms. She suffered from headaches, dizziness, loss of balance, enuresis, a right visual field defect and deafness. It was said that there will be no improvement in these symptoms in the future. She has developed post-traumatic epilepsy, but there was said to be a 70% chance of bringing her attacks under control with treatment. She has been left with poor concentration and memory, a further reduction in her powers of literacy, and a personality change.

It was said that she was fully capable of all acts of daily living, but she required the daily supervision of her behaviour by others, and she would require daily care in the absence of her mother. She had fluctuating attention, concentration and memory, and Professor Neary was of the opinion that when she reached her majority she would not be capable of managing and administering her own financial affairs. Nor would she be capable of an independent living. The chances of her finding work on the open labour market were said to be very seriously jeopardised. The professor was saying at that time that although the claimant had never had any formal rehabilitation, and there was a need for this to take place, it was still likely that she would remain dependent on others.

Her affairs are now being administered by the Court of Protection. Mr Hugh Jones, a partner in the firm of solicitors who act for her, has been appointed receiver. Her mother acts as her litigation friend.

In a statement dated 19th August 2004 her mother has described the claimant’s plight since the accident. The claimant was discharged from hospital back into her care in January 2000. She says she was offered no support, and she did her best to care for her daughter herself. She tried, but failed, to obtain help from Social Services.

When her daughter then got into trouble, she built up quite a good relationship with the probation officer assigned to her through the youth offending team, but unfortunately this probation officer left that job. An attempt was made to get her daughter into college for two days a week (which involved her mother escorting her, as the claimant could not travel alone), but she did not like it and refused to attend after two sessions. Her mother felt close to a breakdown because the extra responsibility for caring for her daughter had fallen on her. Once again approaches to Social Services achieved no productive results.

In her statement her mother described the unsuccessful attempts she had made to induce other agencies to help her, both with caring support and with her daughter’s housing needs. A placement of her daughter at a hostel in Fallowfield failed when she was evicted from the hostel for rule-breaking. Eventually she and her daughter’s boyfriend found a 12th floor local authority flat for her daughter close to her own home. At the time she made her witness statement her daughter was pregnant with her first child (who was born in December 2004), and was spending every day with her until after 11 pm before going back to her flat. One of the reasons why an application for an interim payment of £50,000 was made was to enable a clinical case manager to be appointed. The plan was to set up an appropriate care regime under the case manager’s auspices and supervision. This would provide the essential support the claimant needed both immediately and also after the baby was born.

The application for an interim payment was originally listed for hearing before a district judge. It had to be adjourned for lack of time, and it was then placed before Wakerley J for hearing two weeks later. The defendant’s insurers’ approach to the application is evidenced by the contents of their counsel’s skeleton argument dated 17th October, which ran along the following lines.

The claimant was not going to receive all the money she needed from her damages award, partly because of the 70% compromise on liability, partly because of the outstanding issues about the extent of her behavioural difficulties and cognitive impairment prior to the accident, and partly through issues arising out of her questionable ability to tolerate assistance and supervision. Although it was accepted that she was incapable of paid employment, there was an outstanding question about her earning capacity, if any, even if the accident had not happened. Because she would be unable to fund her needs entirely from private sources, she would require whatever statutory assistance was available. Her mother’s lack of success to date suggested strongly that a clinical case manager should be engaged.

The defendant’s insurers had therefore proposed that a clinical case manager should be instructed jointly to consider the claimant’s needs and to prepare a report. This would take 6-8 weeks. They would be willing to fund this process, and they proposed that the question of an interim payment should be deferred until after the report was ready. In this way there would be no question of the claimant’s entitlement to statutory assistance being prejudiced by her receipt of a large interim award. The claimant’s advisers objected to the concept of joint instruction. The defendant’s insurers favoured it for four main reasons:

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. A joint instruction would further that process and avoid them feeling that they were being kept at arm’s length;

A joint instruction would keep the costs of the litigation under control and increase the prospects of settlement;

The parties would be able to discuss the case confidentially with their own expert witnesses. The unilateral instruction of a clinical case manager would unbalance the process and deprive the defendant of a level playing field;

The question of a joint instruction had become even more important given the identity of the Receiver who was said to have no expertise in this area.

It was argued that the parties would be in a position to plan the further progress of the case at an early stage and with certainty if the defendant’s insurers’ preferred course of action were adopted. On the other hand, if an interim award were made before a clinical case manager had had the opportunity of considering the claimant’s needs and the impact of any interim payments on her entitlement to statutory assistance, this would be likely to prejudice both the defendant and the claimant herself. (In due course the claimant’s advisers gave their reasons for discounting the significance of this risk.)

The claimant’s reaction to these proposals was set out in her counsel’s skeleton argument, which contained a brief summary of the Receiver’s immense experience in this field. Her principal response was set out in these terms:

The judge accepted the main thrust of these submissions. By this time an experienced clinical case manager had been identified who was acceptable to both parties, and the defendant’s insurers were contending that any interim award of damages should be made conditional on the case manager receiving joint instructions and reporting to the parties jointly. They suggested that the court’s broad case management powers conferred by CPR 3.1(2)(m) (“take any other step or make any other order for the purposes of managing the case and furthering the overriding objective”) would embrace the making of an order along the lines they were suggesting.

In rejecting these arguments, the judge said that it would be wrong in principle for the court to use its power to make an interim award by seeking to dictate to a claimant in the Court of Protection what should be done with monies that were undoubtedly hers. He did not consider that he should force her hand so as to make her accept therapeutic care through a care agency responsible to the defendant’s insurers.

During the course of the discussion between the judge and counsel which followed the delivery of his judgment the judge gave the further direction which is the subject of the claimant’s cross-appeal (see para 1 above).

The issues we have to determine on the appeal will be easier to understand if I say something about the role of a clinical case manager. This practice started, we were told, in the United States, and has been developed in this country over the last ten years. For the purposes of this litigation it is sufficient to say that a clinical case manager may be appointed to assist a severely injured person whether or not litigation is pending against a third party tortfeasor. The expense may be borne by private funding or by a health authority or a local authority in an appropriate case. Mr Heaton, who appeared for the claimant, told us that English courts were now habitually including the cost of a clinical case manager in their damages awards. In the present case a claim was being made for £3,000 per annum on a full lifetime basis.

We were shown a copy of the principles and guidelines for case management best practice which were issued in January 2005 by the British Association of Brain Injury Case Managers (“BABICM”). Mr Heaton helpfully summarised the contents of the document in these terms:

The thinking which accompanied the development of the idea that a single professional person should be appointed to perform this range of duties for somebody as badly injured as the present claimant must not be confused with the thinking which took forward the preparation and subsequent revision of the Rehabilitation Code. That code has appeared as Annex D to the Pre-Action Protocol for Personal Injury Claims with effect from 1st April 2005. This protocol now obliges the parties to consider as early as possible whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures, and identifies the code as a helpful means of addressing this issue. It was originally developed through discussions between liability insurers and representatives of claimants’ solicitors at the time of the Woolf reforms. It envisages the preparation of an assessment report in an appropriate case which will be initiated by a joint letter of instruction and funded by the insurer. The whole thrust of the code is designed to encourage early collaboration and consultation between the opposing parties in a heavy personal injuries claim, but there is nothing in it that alters the normal features of the relationship between a professional carer and his/her patient or suggests that the carer will owe any duty to the tortfeasor’s insurer in the way he/she performs his/her duties.

When Mr Kennedy (who appeared for the defendant) opened this appeal, we asked him what were the particular privileges his client’s insurers wished to see in place when a clinical case manager was appointed in a litigation context. He said that their first two concerns had already been resolved by agreement in the present case. The identity of the clinical case manager had been arrived at by mutual agreement, and she had already evinced herself willing to make copies of her case records available to the defendant’s solicitors. The points still in issue were encapsulated in the terms of the suggested minutes of order which he prepared at our request.

The representatives of both parties and their expert witnesses have liberty to communicate with the Case Manager in relation to matters relevant to likely issues in the claim;

The substance of all communications between the representatives of either party and their expert witnesses and the Case Manager in relation to matters relevant to likely issues in the claim be recorded and disclosed immediately.

In our dialogue with counsel which ensued after this draft order had been prepared, Mr Heaton said that he had little difficulty with the first of these propositions, so long as the meaning of the word “communicate” was confined to making suggestions, rather than seeking to impose on the case manager any indications about the way she ought to decide which type of caring regime was most appropriate. Whether the communications were made through the claimant’s solicitors for the sake of good order or directly to the case manager was a matter of form rather than substance. So far as substance was concerned, this was already reflected in the BABICM guidelines, viz

In these circumstances there is no need for us to say anything more about the first of Mr Kennedy’s proposed directions. The second gives rise to much more difficulty, because Mr Kennedy contended that his client was entitled to the disclosure of communications which would ordinarily be the subject of litigation privilege. He said that the idea of the case manager being a member of the claimant’s litigation team for the purposes of contested litigation was inimical to the spirit of openness which his client’s insurers espoused. If an expert witness for the claimant favoured a particular form of expensive rehabilitative care which the insurers considered unreasonable, he said that the die would be effectively cast if the case manager gave the “go ahead”, following a consultation with her client, her client’s legal advisers and her client’s expert, and that in practice it would be most unlikely that a trial judge would rule that care initiated in these circumstances by the case manager was so unreasonable that the defendant should not have to pay for it.

Mr Kennedy also submitted that there was no particular magic about the BABICM guidelines. If the court considered that the appointment of a case manager who owed duties to the patient alone and who should not be subject to joint instructions was inimical to the CPR philosophy when the appointment was made in the context of contested litigation, the court should not hesitate to say so.

Although I would have preferred to know more from those who had practical experience in this country of the clinical case manager institution, I find it impossible to accept Mr Kennedy’s submissions. It seems to me inevitable that the clinical case manager should owe her duties to her patient alone. She must win the patient’s trust and if possible her co-operation in what is being proposed, and while it will be in her patient’s interests that she should receive a flow of suggestions from any other experts who have been instructed in the case, she must ultimately make decisions in the best interests of the patient and not be beholden to two different masters.

Needless to say, any communications the clinical case manager may have with the claimant’s expert witnesses whose dominant purpose is not one which attracts litigation privilege (for which see Waugh v British Railways Board [1980] AC 521) will be disclosed as a matter of course. But if the clinical case manager considers that it is in her client’s interests that she should attend a conference with legal advisers at which advice is being sought, then the privilege is not hers to waive, and I do not consider that the court would have any power to direct such waiver. Mr Kennedy accepted that the court could not override the claimant’s privilege. The avowed purpose of his submission was to seek to ensure that the case manager would not attend conferences with lawyers and experts whose contents were privileged. This would secure his client’s objective, that the claimant’s lawyers and experts should not have what he called “behind closed doors” access to the case manager. It is not right, however, that the court should seek to achieve that result indirectly, which it has no power to achieve directly.

This is not to say that it is not desirable to encourage as much openness in the exchange of information and views as possible in the spirit of CPR 1.3, so long as everyone concerned is acting sensibly and reasonably and is not reverting to pre-1999 trench warfare. Because of the way in which the point came to be raised before the judge, there was no evidence before him about the practice of case managers, or as to what problems (if any) have been or may be encountered in relation to the involvement of case managers in litigation brought by or on behalf of their client. If experience comes to show that there are indeed problems which need to be addressed, it is desirable that, in the first instance, they be addressed among those concerned with these matters, with a view to professional guidance being promulgated on the point, rather than by judges who may have an imperfect grasp of all the possible ramifications of any new practice.

A good example of the way in which avoidable suspicions may arise and impede a collaborative approach to a negotiated settlement came to light during the course of the hearing. When we asked Mr Kennedy to give an illustration of his clients’ worries he said that although the neurologists on both sides had agreed that the extent of the claimant’s brain damage was such that a rehabilitation regime was not viable, the claimant’s advisers had said on 17th October 2004 that they were obtaining a report from a consultant in neurological rehabilitation and that “it is intended also to implement any recommendations he may make”. The defendant’s insurers had heard nothing more about this in the ensuing six months, and since the consultant in question sometimes recommends very expensive rehabilitation regimes they feared that very significant decisions might have been made by the clinical case manager following discussions to which they and their expert advisers were not privy.

When we asked Mr Heaton about this, he told us, on instructions, that the consultant in question had delivered his report before the end of October. Although he suggested other lines of inquiry, his report was no more positive than the other two. Mr Heaton said that the report had been retained by his solicitors and had not yet been disclosed either to the defendant or to the case manager. We were told a few days after the hearing, however, that although the report was dated 27th October 2004 it was not in fact sent to the claimant’s solicitors until 4th May 2005. The reason for the delay, it transpired, was that the consultant had wished to see the claimant’s medical records before he finalised his report, and this request was overlooked in the claimant’s solicitor’s office. Because the claimant was fully preoccupied with the arrival of her new baby, no very great priority was given to this matter.

Failures in communication often create as much havoc in the field of litigation as they do in other walks of life. The claimant’s advisers did their client no favours by first saying that they “vehemently objected” to the defendant’s insurers’ quest for a greater degree of openness and then permitting suspicions to fester because they were not open about their dealings (or non-dealings) with the expert in neurological rehabilitation after saying that they intended to implement any recommendations he might make.

However that may be, this appeal was founded on the defendant’s contention that the judge had been wrong to reject his case 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. For the reasons I have given, although a spirit of openness is to be encouraged, these propositions must both be rejected, and the defendant’s appeal dismissed with costs.

Mr Kennedy did not resist the cross-appeal with any marked enthusiasm. The role of a clinical case manager, if she is called to give evidence at the trial, will clearly be one of a witness of fact, as the BABICM guidelines suggest. She is there to give evidence of what she did and why she decided to do it. She will not be giving evidence of expert opinion, and the regime of CPR Part 35 and its Practice Direction will not therefore relate to her evidence. Nor will the Code of Guidance on Expert Evidence which is published in the practice books. The cross-appeal will therefore be allowed, with costs, and paragraph 6 deleted from the judge’s order.

I agree.

I also agree.

Defendant’s appeal dismissed with costs.

Cross-appeal allowed with costs and paragraph 6 deleted from the Judge’s order.