The role of a clinical case manager in litigation
This appeal to the Court of Appeal arose out of a Case Management Conference directed towards the assessment of damages. The defendant appealed against the Judge’s order declining to impose any conditions on an order for payment of £50,000 as an interim award. The claimant cross appealed against the Judge’s direction that any witness statement made by her clinical case manager should recite that, although she was a witness of fact, she should treat herself as owing the same duty to the court in the making of a statement as if she were an expert preparing a report for the court.
Lord Justice Brooke said that a clinical case manager might be appointed to assist a severely injured person whether or not litigation was pending against a third party, and English courts were now habitually including the cost of a clinical case manager in their damages awards. The defendants submitted that they were entitled to the disclosure of communications that would ordinarily be the subject of litigation privilege, and that the idea of the case manager being a member of the claimant’s litigation team for the purpose of contested litigation was contrary to the spirit of openness.
However, it was inevitable that the clinical case manager should owe his duties to the patient alone. He must win the patients trust and if possible his co-operation, and while it would be in the patient’s interest that he should receive a flow of suggestions from any other experts who had been instructed in the case, the case manager must ultimately make decisions in the best interests of the patient and not be beholden to different masters.
The court held that the case manager owed his duties to the patient alone and not to both the patient and the court. Furthermore it was not the case that all communications between the representatives of either party and their expert witness and the case manager, relating to matters relevant to likely issues in the claim, should be recorded and disclosed immediately.
Wright -v- Sullivan. Court of Appeal 27 May 2005. Times Law Report
Limitation: knowlede of the identity of the defendants
The defendants appealed against a decision that the claimant was not statute barred where the claimant had worked as a forklift truck driver but his pay slips were in the name of the defendants associated company. The claimant’s solicitors had sent a letter of claim to the associated company who passed the letter on to their insurers who had identified themselves as insurers of the associated company and its subsidiary companies.
The insurers admitted liability subject to contributory negligence, which had been settled. The insurers confirmed that the correct defendant was different from the company on the payslip. A claim form had been issued naming both companies as defendant, but was not served within the four months allowed. The defendants applied to strike out the second claim bought by the claimant on the basis it was statute barred because the claimant’s date of knowledge was the date of the accident. The claimant submitted that the second claim form had been served in time on the basis that his date of knowledge that started time running was when he first learnt from the insurers of the existence of the real defendants.
The Court of Appeal held that, in most accident at work cases, the employee would know the identity of the employer and therefore of the defendant. However in a minority of cases, where the identity of the employer was uncertain or even wrongly stated to the employee, the date of knowledge could be postponed. Applying the case of Simpson
-v- Norwest Holst Southern Limited (1980), how long it would be postponed would depend on the facts; and in general it could only be postponed for as long as it reasonably took to make and complete the appropriate enquiries.
In this case the claimant had been misinformed about the identify of the employers since his payslips identified another company and he had no reason to think that the company other than that company was his employer until as early as the receipt of the insurers letter. The second claim was issued within three years of his date of knowledge and was not statute barred.
Cressey -v- E Timm and Son Limited & E Timm & Son Holding Limited. Court of Appeal 24 June 2005.