Wright v Sullivan - He who pays the piper doesn’t call the tune
Wright v Sullivan - He who pays the piper doesn’t call the tune
A seriously injured claimant wants a large interim payment to set up a care regime under the supervision of a clinical case manager. The defendant is worried that the costs of the proposed regime will be excessive and that setting it up now will make it effectively impossible to persuade a judge at trial that a less expensive regime should be preferred. Given this, what (if any) input into the clinical case manager’s instructions can the defendant insist on having? And can the claimant’s advisors’ discussions with the clinical case manager be shielded from the defendant by litigation privilege? In a setback for insurers trying to keep the costs of future care under control, the Court of Appeal in Wright v Sullivan [2005] EWCA Civ 656 has come down firmly in favour of claimants on these issues.
C was knocked down by D’s car and suffered a severe concussive head injury resulting in brain damage. Her solicitors applied for an interim payment of £50,000 in order to appoint a clinical case manager (M, who was an acceptable individual to both parties) who would set up and supervise an appropriate care regime for C. D wanted it to be a condition of the interim payment that M was instructed jointly and reported to the parties jointly. D stressed the need for co-operation between parties and the need to keep costs under control, although D was clearly concerned to keep the eventual damages down too.
C objected, arguing that M would not be an expert witness but someone in a therapeutic relationship with her. D’s involvement could upset the relationship between C and M. The judge, Wakerley J, agreed. It would be wrong, he decided, to dictate to C what should be done with her money, nor should she be forced to accept therapeutic care through an agency responsible to D as well as C. D appealed against the refusal to impose conditions on the interim payment.
On appeal, C agreed that D could make suggestions to M about relevant matters, as long as D did not seek to impose any indications about what M ought to decide was the most appropriate care regime. The main issue was therefore whether communications between C’s advisors and M should be privileged. D submitted that appointment of a clinical case manager owing duties to C alone would be inimical to the CPR philosophy of co-operation between the parties. Brooke LJ, giving the leading judgment, found these submissions “impossible to accept”, saying it was inevitable that M owed duties to C alone and “while it will be in [C’s] interest that [M] should receive a flow of suggestions from any other experts who have been instructed in the case, [M] must ultimately make decisions in the best interests of the patient and not be beholden to two different masters”.
There are a few small crumbs of comfort for insurers. There was C’s acceptance, in line with guidelines issued by the British Association of Brain Injury Case Managers, that D could make suggestions to M – although any heavy-handed attempt to pressurise a clinical case manager might backfire. Brooke LJ also noted that not all communications with M will attract litigation privilege and these must be disclosed, and he encouraged as much openness in the exchange of information and views as possible, avoiding “pre-1999 trench warfare” as he put it.
The coda to the appeal was the issue of whether M, despite being a witness of fact, should be made to state that she treated herself as owing the same duties to the court as if she was an expert witness. The Court of Appeal allowed C’s cross-appeal on this issue and were clearly right to do so. As the Court of Appeal noted, M would give evidence of what she did and why, not of expert opinion. They could have added that the judge had inappropriately created a hybrid category of witness, unknown to the CPR, somewhere between factual and expert.
Brooke LJ suggested that if there were problems more generally that needed to be addressed, discussions should take place between those concerned with a view to professional guidance being promulgated, rather than leave it to judges to sort out these matters. Although Brook LJ did not go into the details of how such practicalities might be resolved, practitioners on both sides might want to start building their own scrapbooks of cases where defendants have been interfering, or claimants have been uncooperative. In the meantime, though, one possible route for defendants restraining costly care regimes has been blocked.