Wright v Sullivan [2005] EWCA Civ 656

This case is of importance to those interested in brain injury litigation and personal injury generally. The insurer sought a condition before the judge could make an interim damages award that a brain injury case manager be jointly instructed to report to the court on the case. The insurer argued that it would encourage openness between the parties and keep costs under control. It was contested by the claimant arguing that the case manager should not be jointly instructed, nor should she be a court expert but should be a witness of fact which would enable her to preserve the therapeutic relationship with the claimant. It was argued for the claimant that to accede to the defendant's proposal might jeopardise the treating relationship as the claimant might decline to engage with advice or treatment because she knew the case manager would be reporting directly to the defendant.

The judge was persuaded by the claimant's argument but directed that although the case manager was to be a witness of fact, she should treat herself as owing the same duties to the court as if she were an expert preparing a report to the court.

Both sides appealed, the defendant wanting joint instruction, the claimant wanting the case manager to owe her duty of care to the client not the court. In the Court of Appeal the insurer contended for a particular direction that all communications between each party's representatives, their experts and the case manager be recorded and disclosed immediately. In effect what the insurer was trying to do by the proposed direction was to prevent the case manager having 'behind closed doors' discussions with the claimant's lawyers and experts.

Brook LJ giving the judgment of the Court of Appeal said that where the purpose of a communication between case manager and expert or lawyer was not for the case then those communications would be discloseable to the defendant but if she considered it was in her client's interest to attend a meeting with the client's lawyers at which time legal advice is given, that advice is privileged from disclosure by the case manager to the other side. The court could not and would not take away that right of privilege possessed by the claimant, not the case manager, and the defendant's appeal failed.

Brook LJ also refused the defendant's argument that the case manager should be a jointly instructed expert. His reason for the refusal was that he regarded it as inevitable that the case manager should owe her duty to the patient alone. He recognised that she had to win the trust of the patient, make her decisions in the best interest of the patient and could not be beholden to any other party. He approved the practice that the case manager if she gave evidence at trial did so as a witness of fact. She is there to give evidence of what she did and why she did it, and she will not be giving evidences of expert opinion.

The decision will be welcomed by all as a clear statement of the role of a brain injury case manager within litigation. The decision enhances the prospect of rehabilitation as it recognises and protects the therapeutic relationship between case manager and client. The claimant's legal advisers were concerned that should the appeal succeed, it would dramatically alter the nature of the relationship of the clinical case manager which is therapeutic. This is and should be distinct from the legal case manager whose primary responsibility is the court. The case recognised those differences and reaffirmed for all interested parties and to case managing judges that the case manager's duty is to the client alone and she must make her decisions in the client's best interest.

The case poses to practitioners the question whether the principle of preserving and pursuing the therapeutic relationship has a resonance with other disciplines engaged in rehabilitation.

For example, within brain injury and spinal injury rehabilitation one could say the role of the neuro-physiotherapist, speech therapist and occupational therapist all have similar therapeutic relationships with the client and accordingly ought to be treated as witnesses of fact instructed solely for the claimant.

Consider the role of the architect instructed to adapt, build or purchase a house for the claimant. Surely suitable accommodation is an essential part of the rehabilitation process. If so, decisions in that regard should only be taken in the client's best interests without reference to any other duty to another party. Anyone acting for the severely injured will have seen the marked improvement to the quality of life of that person on obtaining appropriate accommodation. If the claimant's expert takes the wrong decision the defendant's expert will present the contrary argument to the court at trial and should he win the day, the defendant will be protected by the award of a smaller sum for that head of loss. Each architect must give opinion evidence and therefore be treated as an expert, but we believe the court should not interfere with and possibly compromise the therapeutic relationship by requiring joint instruction.

In an amputee case, consider the role of the prosthetician advising on improvements and advances to be gained by changing the prosthetic prescription. His relationship with his client is therapeutic, he must gain the client's confidence and put the client's best interest first. Should not the prosthetician be treated as a witness of fact?

Finally the care expert. Do not similar issues to those which apply to the architect apply here? A care expert frequently advises on the best support to enhance rehabilitation. Decisions with regard to what is the right level of care cannot wait for trial as the delay may jeopardise the client's health and/or safety. The decision must be taken on what is best for the client not the insurance company. Expert rather than lay witness, but if the principles of the Wright case are to be applied, should not single instruction not joint apply?

The position for the claimant is different; all the various therapies are not simply a paper exercise to quantify a legal loss, but a practical exercise in the acquisition and adaptation of property, establishing a suitable care regime and building into that the appropriate therapies. All these therapeutic roles should be kept separate from the legal expert role whose primary duty is to the court.

It is our view that the Court of Appeal has given recognition to the importance of the rehabilitation principle by acknowledging the primacy of therapeutic issues. It will be of interest to see whether case management decisions will be influenced by the 'Wright effect'.

One final comment we have is with regard to the need to keep case records in a professional manner. Most case records will not be privileged as the dominant reason for their creation is not litigation. Case managers therefore must take care in how they record their thoughts of the client and his rehabilitation. Email and telephone call records are all discloseable!

Gerard Martin | Carole Jackson