Writing for the 2024/25 edition of the Brain & Spinal Injury Handbook, partner Ben Townsend explains the importance of the relationship between the solicitor and case manager in catastrophic injury claims, and key issues for both to consider during the process.

In catastrophic injury claims, there is a large team around the injured claimant. The legal team consists of the lead solicitor and colleagues working on the case at the solicitors’ firm. In addition, one or more barristers will present the case in court if it goes to trial. There will also be medico-legal experts reporting on the claimant’s condition and prognosis to the court.

The rehabilitation professionals are a vital part of the claimant’s team. This will consist of the case manager and other rehabilitation professionals working with the claimant to maximise the claimant’s recovery and the speed at which it takes place. Depending upon the issues the claimant faces, several professionals may be working with them.

This article is written on the assumption that the claimant has instructed the case manager singly. If the case manager is instructed on a joint basis, then similar considerations will apply. However, communication will then be between the case manager and both the claimant’s and defendant’s solicitors.

Communication

The main conduit for communication between these teams will be between the case manager and the solicitor. This relationship is of fundamental importance to any catastrophic injury claim. There must be clear communication channels between them, which need to be used regularly throughout the case. For reasons of space, this article concentrates on communications from the case manager to the solicitor. While it is just as important for the solicitor to keep the case manager informed as the case proceeds, actions the solicitor needs to take may have much longer lead times than those of the case manager.

Key issues to consider

It is vital the case manager feels that any issues they raise with the solicitor will be taken seriously. By the same token, the solicitor will want the case manager to raise important issues with them in a timely manner as the case proceeds. These issues may include the following:

1. A change in the claimant’s presentation. If the claimant’s presentation has deteriorated or improved, the claimant’s solicitor will need to know about it, as the change must be reflected in the evidence. In particular, changing symptoms may warrant the claimant’s solicitor introducing new types of medico-legal experts to the case. The solicitor may want to arrange re-examination of the claimant by the existing experts. Given the long lead times there can be with medico-legal expert appointments, the claimant’s solicitor must be notified about any change in presentation as soon as possible so that the necessary expert appointments can be arranged.
2. Rehabilitation strategy. The case manager may change their approach to rehabilitation, perhaps because they feel the current approach is not working for the claimant. The claimant’s solicitor’s job is not to tell the case manager how to approach rehabilitation, but they will have informed the medico-legal experts about the rehabilitation strategy and sought their endorsement of the approach being taken by the case manager and the rehabilitation team.

If the strategy is changing, the solicitor needs to know. Again, this change may require an update to the expert evidence. A different strategy may also warrant a request for further funding from the defendant’s insurer, for instance, to pay for a more intensive approach to rehabilitation. Either way, the claimant’s solicitor must be given early notification of this. Seeking further money for funding may take months, particularly if court proceedings need to be started and a contested application made to the court to force the defendant to make a payment.

3. Safeguarding concerns. Claimants are often highly vulnerable, and it is not unusual for there to be safeguarding concerns relating to people who have contact with them. The solicitor must know about any such concerns. Firstly, this is because there will need to be a pooling of information around the concerns. Secondly, a strategy in relation to informing the claimant and their family of those concerns will be required. Statutory authorities may have to be notified. The solicitor will need to be aware of this as it will generate further information and documents relevant to the claim. Depending on the identity of the person on whom the safeguarding concern centres, the solicitor may decide that the issue should be brought before the court, especially if the concerns relate to close family members. Either way, it is important the legal team is aware of such concerns.
4. Behavioural approach. Brain injury survivors, in particular, often display challenging behaviour. The case manager and the rest of the rehabilitation team will need to work out its approach to solving such issues. For a couple of reasons, it is vital that any such approaches are discussed with the solicitor. First, it is useful for the legal team to be aware of the approach the rehabilitation team takes with behavioural issues. Also, the legal team should reinforce that approach or, at the very least, ensure they are not doing anything to actively undermine it.
5. There are often difficult issues raised during a catastrophic injury claim for the rehabilitation team. The case manager is a rehabilitation professional well used to dealing with tricky issues. Indeed, you may argue that the case manager’s job is to solve problems. However, it is always useful to have another professional to bounce ideas off and the case manager should feel able to discuss issues with the solicitor as part of a mutually supportive approach. It should be borne in mind that this article assumes the case manager is being instructed on a claimant-only basis. If the case manager is instructed jointly, issues cannot be raised with the claimant’s solicitor alone.
6. By producing regular paperwork, the case manager will keep the legal team well informed about what is happening with the case. However, disclosure of case management records is not a substitute for having regular case management reports, as case management records can be very in-depth. It can be difficult for the legal team to sort the wood from the trees as to the rehabilitation team’s strategy and approach. Similarly, it is not always clear from the case management records what the reasoning behind any approach being taken by the case manager is. Regular reports from the case manager are vital for the legal team for their own purposes and to keep the defendants updated on what is happening.

In conclusion, it is difficult to overestimate the importance of the relationship between the claimant’s solicitor and the case manager. They both need to work on it to ensure a consistent proactive approach to the claimant’s litigation and rehabilitation, as ultimately the claimant is the beneficiary of their hard work together.

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