In serious injury cases, an important consideration is whether the rehabilitation team should be instructed on a single (i.e. by the injured person) or joint (i.e. by the injured person and the insurer) basis. There are pros and cons to both options.

In the case of Wright – v – Sullivan [2006] 1 WLR 172, the Court of Appeal stated that a case manager should owe her duties to the injured person alone; there was a need to “win” their trust and co-operation of what was proposed; and the case manager, although informed by experts instructed by both parties, should make independent decisions as to what s/he believes is in the injured person’s best interests.

The Court of Appeal also confirmed that the role of a case manager at trial is as a witness of fact, not as an expert witness. This Judgment was given after a Defendant sought to persuade the High Court that it should be a condition of them making a further interim payment on account of damages (i.e. paying compensation up front to fund rehabilitation) that the case manager be jointly instructed.

The case is often relied upon by lawyers acting for injured people to justify the single instruction preference.

The advantages are that the case manager and the rehabilitation team can have privileged (confidential) discussions about the litigation with the lawyer; they can attend conferences with counsel and medico-legal experts; there is no blurring of the lines in terms of who the case manager and the rehabilitation team owe their duty to – the injured person; the injured person may feel able to be more open and transparent knowing that the case manager is not duty bound to report what is being said to the insurer.

There are not many disadvantages to injured people and their families. If there is a contributory negligence apportionment, a jointly instructed case manager and rehabilitation team will often be paid at 100% by the insurer.

This is clearly very advantageous to the injured person as they do not have to worry about spending at 100% but only recovering what the liability apportionment allows them to. It can also prevent a positive and collaborative working relationship between the parties, particularly if there is a feeling of distrust.

A jointly instructed case manager and rehabilitation team can work well if the parties have mutual respect, trust, and transparency. If there is a willingness to maximise the rehabilitation and then quantify the case when there is a prognosis, there can be advantages to both sides.

There is the advantage that the Defendant team can “feed into” the rehabilitation by letting the case manager know what the medico-legal experts that they have instructed have recommended. This has the potential to narrow the issues between the parties when it comes to settlement.

The process can run more smoothly generally. There is a less of an antagonistic feel to the litigation. In enables both sides to be better informed about the rehabilitation and care requirement, which is also likely to lead to a swifter settlement once the final prognosis is known.

There is also a hybrid model which is the author’s preference, subject to considerations about contributory negligence which is set out above. The case manager is selected and instructed on a single basis by the injured person.

They work solely for them. However, there is respect, trust and collaboration between the lawyers. The Defendant team are allowed access to the records at frequent and agreed intervals.

They are allowed to attend the MDT meetings to ask questions. Both sides have joint discussions with the case manager to share ideas and discuss progress, where problems, if there are any, can be identified at an early stage and dealt with which is in both parties’ interests.

The medico-legal experts can have discussions with the case manager if the parties agree to ensure that all recommendations are “on the table” for consideration. There is agreement that the Defendant team will not try to resolve the case until the injured person’s final prognosis is known.

This way of working appreciates that the Defendant team would benefit from being kept up to speed about the rehabilitation to understand the likely claim that they are going to be asked to meet.

However, most importantly, it ensures that the injured person selects the case manager and instructs them. The case manager’s duty is solely to the injured person. It is the injured person alone to ensure that a rehabilitation and care package best meets their needs.

A case manager is instructed because of their expertise. The medico-legal experts are instructed to provide independent views on the condition and prognosis including future rehabilitation and care need.

It is right that the injured person be provided with the autonomy of implementing a package that best meets his or her needs without undue interference. If an injured person implements a successful rehabilitation and care team, they will recover the cost so long as the package is reasonable.

It does not have to be the cheapest; it just has to be a reasonable choice.

Although of course each case has to be considered on its facts, there can often be a sensible way forward if there is collaboration between the lawyers and a commitment to find common ground particularly at the early stage when both parties want the injured person to maximise their recovery.

David is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.