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Are commercial demands the barrier to progressing transparency at the litigation/case management interface? Peter Walmsley.

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Presentation on theme: "Are commercial demands the barrier to progressing transparency at the litigation/case management interface? Peter Walmsley."— Presentation transcript:

1 Are commercial demands the barrier to progressing transparency at the litigation/case management interface? Peter Walmsley

2 1 Insert footer text by selecting ‘Footer’ on the Clyde & Co Tools ribbon tab Case Management & Litigation Case Management was introduced to the UK in the late 90’s it is now in that awkward teenage phase. The rehabilitation industry is still not adequately regulated. A good case manager’s intention is always to put the person’s life back to how it was before the accident: However case mangers remain in the firing line of the non- instructing (and instructing party) for their actions. Suspicion that not all parties goals are in alignment.

3 2 Insert footer text by selecting ‘Footer’ on the Clyde & Co Tools ribbon tab Loughlin v Singh Driving a wedge between the parties and treating Case Managers? Issues in Case management came to a head in Loughlin v Singh [2013] EWHC 1641 Facts: Claimant was a 23 year old male at time of trial and a recognised difficult case. The Defendants argued that care and case management had been below the expected standard, and quoted extensively from the case manager’s records, to demonstrate that while the case manager accurately identified a particular problem (lack of adequate sleep hygiene) in December 2008, no sleep programme was actually drawn up until May 2010, and even that appeared suboptimal, to the extent that the Judge concluded that the “ …sleep routine remained unaddressed throughout 2010 and 2011 …” ‘…the standard of the care and case management services did, in an important respect, fall significantly below the standard that could reasonably have been expected …” As a result, the Judge reduced by 20% the charges actually claimed for care and case management.

4 3 Insert footer text by selecting ‘Footer’ on the Clyde & Co Tools ribbon tab Loughlin v Singh Driving a wedge between the parties and treating Case Managers? It was highlighted that support workers were employed for non-essential tasks. Parker J stated this was ‘Fostering dependence rather than independence’. The decision suggests that there would have been need for less support for the claimant had the required sleep program been entered sooner. The judgement follows that if a Defendant Insurer can accurately identify the extra support work and case management that has been generated by poor performance of a third party this will result in a reduction of the Claimants damages. There is now a motivation for a Defendant to forensically investigate the Case manager and highlight increased costs generated by inaction or unnecessary actions. In a successful Louglin argument it will be the claimant who suffers the shortfall. Will the Claimant then purse the case managers for the difference? Should Case Managers now have a reasonable exclusion clause in its terms of engagement limiting liability? Easy to now see situation where there is a potential for conflict between both parties and the Case Managers.

5 4 Insert footer text by selecting ‘Footer’ on the Clyde & Co Tools ribbon tab Louglin decision has received some criticism. Did the actions of the Case Manager equate to the same position of a claimant who has failed to mitigate their loss? Is it a break in the chain of causation? In Ali v Caton [2013] EWHC 1730 a similar argument was rejected by Stuart-Smith J: ‘The position of a significantly brain –damaged claimant who acts on the basis of apparently reasonable advice is strong, though not always impregnable, when seeking to recover the costs of doing so from a tortfeasor’. In reality neither side wants to see a adversarial relationship with the case manager develop and all parties have to work together to ensure a win:win scenario. Loughlin v Singh Driving a wedge between the parties and treating Case Managers?

6 5 Insert footer text by selecting ‘Footer’ on the Clyde & Co Tools ribbon tab Case Management & Litigation ‘Case Management is a collaborative process which: assesses, plans, implements, co-ordinates, monitors and evaluates the options and services required to meet an individual’s health, social care, educational and employment needs, using communication and available resources to promote quality cost effective outcomes’ CMSUK If these requirements were being consistently met would Parker J have given the reduction (and warning) in Loughlin? Should the role of case manager now be more clearly defined and an improved way of collaborative working between all parties be implemented.

7 6 Insert footer text by selecting ‘Footer’ on the Clyde & Co Tools ribbon tab Case Management & Litigation Since the development of Case Management the number of those practising as case managers have increased dramatically. As a relatively new industry many of those employed have a good understanding of the therapeutic relationship, they may not be as familiar with the personal injury process and may in some cases lack the commercial awareness that is required for the industry (not in all cases!) Whilst on the face of it Louglin is a useful stick for the Defendant insurer to have in their armoury to reduce costs, a more effective tool would be the carrot to ensure that case managers deal with the cases appropriately and expeditiously. As demand for case management is increasing, now is the time for the industry to revisit its definition of the case managers role and provide adequate training and best practice in order to prevent more cases like Loughlin v Singh in the future. Defendant insurers should position themselves front and centre of this. This should achieve the win:win of a better result for the injured claimant and reduced cycle times of claims.

8 7 Insert footer text by selecting ‘Footer’ on the Clyde & Co Tools ribbon tab Pete’s Final Thought… The litigation process isn’t always easy, but can you imagine a world without lawyers?

9 1,5001st30040 Lawyers and fee earners worldwide Law Firm of the Year Legal Business Awards 2011 Partners worldwideOffices across Europe, Americas, Middle East, Africa and Asia. Clyde & Co LLP accepts no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co LLP. © Clyde & Co LLP 2015


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