Wright v Sullivan

A clinical case manager appointed for a severely injured claimant in contested litigation owes duties to the claimant alone. The court should not require joint instructions or permit the defendant to control the therapeutic relationship. Litigation privilege cannot be waived by indirect case-management directions; communications lacking a privileged dominant purpose remain disclosable. Openness and consultation are encouraged, but they do not alter the professional carer-patient relationship or impose duties to the defendant’s insurer. A case manager who gives evidence about services provided and the reasons for decisions is a witness of fact, not an expert witness, so the expert-evidence regime does not apply.

The claimant, who had sustained a severe brain injury after being struck by the defendant’s car, brought a personal injury claim. Liability had been compromised on a 70/30 basis, and the remaining issues concerned damages and future care. During case management, she sought an interim payment of £50,000 under Civil Procedure Rules 1998 r 25.7 to fund the appointment of a clinical case manager.

Wakerley J refused to make the payment conditional on joint instructions to the case manager or reporting to both parties. He also directed that any statement by the case manager should reflect expert-like duties to the court. The defendant appealed against the conditions ruling, and the claimant cross-appealed against the direction concerning evidence. The central issues were the case manager’s proper relationship with the claimant, the scope of litigation privilege, and whether her evidence was expert or factual.

Brooke LJ delivered the judgment, with which Dyson LJ and Lloyd LJ agreed. The defendant’s appeal was dismissed and the claimant’s cross-appeal was allowed.

1. Case manager’s duties. A clinical case manager appointed to assist an injured claimant must owe her duties to the patient alone. She must secure the patient’s trust and make decisions in the patient’s best interests. She must not be beholden to two masters. The court therefore should not compel joint instructions or impose a relationship in which the defendant’s insurers share control of the therapeutic care.
2. Case-management powers and privilege. The broad power in Civil Procedure Rules 1998 r 3.1(2)(m) did not justify conditioning the interim payment on joint instruction, joint reporting, or acceptance of care through an agency responsible to the defendant’s insurers. Communications whose dominant purpose did not attract litigation privilege were disclosable as a matter of course, applying the principle referred to in Waugh v British Railways Board [1980] AC 521. But the privilege over communications with legal advisers and experts belonged to the claimant. The court had no power to direct its waiver, whether directly or indirectly.
3. Openness. The collaborative approach encouraged by CPR 1.3 and the Rehabilitation Code did not alter the ordinary professional carer-patient relationship or impose duties to the tortfeasor’s insurer. Openness and consultation remained desirable where parties acted sensibly and reasonably.
4. Professional guidance. If experience revealed practical problems concerning case managers in litigation, the court considered that they should initially be addressed through professional guidance, rather than judicial intervention without evidence of the problems and their ramifications. This was a conditional, non-dispositive observation.
5. Evidence. A clinical case manager giving evidence at trial would be a witness of fact, describing what she did and why. She would not give expert opinion. Accordingly, CPR Part 35, its Practice Direction, and the Code of Guidance on Expert Evidence did not apply. Paragraph 6 of the judge’s order was deleted.

The defendant’s appeal was dismissed with costs. The claimant’s cross-appeal was allowed with costs.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 656, the defendant’s appeal was dismissed with costs. The claimant’s cross-appeal was allowed with costs, and paragraph 6 of the order was deleted.
2. High Court of Justice, Queen’s Bench Division, Manchester District Registry: Wakerley J, on 11 November 2004, refused to impose conditions on the claimant’s interim award of £50,000 and directed that the clinical case manager’s witness statement should recite expert-like duties to the court.