Wright v Sullivan

Factual and Procedural Background

The claimant, born in June 1984, experienced learning difficulties and was subject to a severe assault in January 1999, which resulted in no lasting neurological impairment according to a February 2002 report by a neurologist. Subsequently, on 31st December 1999, the claimant was injured in a road traffic accident caused by the defendant. Liability was partially admitted on a 70/30 basis in favour of the claimant. The claimant sustained a severe concussive head injury with ongoing physical and mental symptoms, including epilepsy and cognitive impairments, necessitating supervision and care.

The claimant's affairs are managed by the Court of Protection with a solicitor appointed as receiver and her mother acting as litigation friend. The claimant's mother described the lack of support and difficulties in securing appropriate care and housing for the claimant, who was pregnant at the time of the proceedings. An interim payment of £50,000 was sought to appoint a clinical case manager to establish a care regime.

The defendant opposed the interim payment being made before a clinical case manager’s report was prepared, proposing joint instruction of the case manager to ensure cooperation and cost control. The claimant objected, asserting that the case manager was a therapeutic professional engaged solely on her behalf and should not be jointly instructed or subject to the defendant’s influence. The trial judge declined to impose conditions on the interim payment and directed that the case manager’s witness statement be treated as that of a fact witness with duties akin to an expert witness. Both parties appealed these decisions.

Legal Issues Presented

1. Whether a clinical case manager in contested personal injury litigation should be jointly instructed by both parties or solely by the claimant.
2. The appropriate status and duties of a clinical case manager’s witness statement in litigation, specifically whether it should be treated as that of a fact witness or an expert witness.
3. The extent to which communications between the clinical case manager and parties or experts should be disclosed, considering litigation privilege and the therapeutic nature of the case manager’s role.

Arguments of the Parties

Defendant's Arguments

• The clinical case manager should be jointly instructed by both parties to promote cooperation, control litigation costs, and maintain a level playing field.
• Joint instruction would prevent the defendant from being excluded from the claimant’s care decisions and avoid the claimant obtaining statutory assistance being prejudiced by interim payments.
• The defendant sought disclosure of all communications between the case manager and parties or experts, arguing that confidentiality would undermine transparency and fairness.
• The defendant relied on the court’s case management powers under CPR 3.1(2)(m) to impose conditions on the interim payment.

Claimant's Arguments

• The clinical case manager acts in a therapeutic and professional capacity solely on behalf of the claimant and should not be subject to joint instructions or defendant influence.
• The case manager’s role is not that of an expert witness but a fact witness, and the relationship is confidential and therapeutic, requiring protection from defendant interference.
• Joint instruction could undermine the claimant’s trust in the case manager and the effectiveness of the care provided.
• Disclosure of communications that attract litigation privilege should not be compelled, as privilege belongs to the claimant and cannot be waived by the court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Waugh v British Railways Board [1980] AC 521	Establishment of litigation privilege and its scope regarding communications in litigation.	The court referenced this case to explain that communications between the case manager and expert witnesses whose dominant purpose is not litigation privilege will be disclosed, but privileged communications cannot be compelled to be disclosed or waived by the court.

Court's Reasoning and Analysis

The court recognized the novel issues concerning the role of a clinical case manager in contested litigation. It explained that the clinical case manager’s duties are owed solely to the claimant, and the therapeutic and professional nature of the relationship requires the case manager to act in the claimant’s best interests without being beholden to both parties. Joint instruction was rejected on the basis that it would undermine the claimant’s trust and the therapeutic relationship.

The court considered professional guidelines issued by the British Association of Brain Injury Case Managers (BABICM), which emphasize the case manager’s role as a fact witness and the inadvisability of joint instructions due to potential conflicts of interest. The court also distinguished the case manager’s role from that of expert witnesses governed by CPR Part 35 and the Code of Guidance on Expert Evidence.

Regarding disclosure, the court held that while openness is encouraged, litigation privilege protects certain communications, and the court cannot compel waiver of privilege. The defendant’s request to restrict the case manager’s communications with claimant’s lawyers and experts was not upheld, as it would indirectly attempt to achieve a result the court could not order directly.

The court noted the importance of professional guidance and cooperation among practitioners to address any practical difficulties arising from the involvement of case managers in litigation, rather than judicial imposition of new rules without full understanding of ramifications.

Holding and Implications

The court DISMISSED the defendant’s appeal with costs, rejecting the proposal for joint instruction and restrictions on the clinical case manager’s communications.

The court ALLOWED the claimant’s cross-appeal with costs, deleting the direction that the clinical case manager’s witness statement should be treated as if she were an expert preparing a report, confirming instead that she is a witness of fact.

The direct effect of this decision is to preserve the clinical case manager’s independent and therapeutic role solely on behalf of the claimant and to clarify her evidential status as a fact witness. No new legal precedent was established beyond the application of existing principles to this emerging practice in personal injury litigation.