ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE GRIFFITH WILLIAMS)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE KEENE
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PENNINGTONS (A FIRM)
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Guy Mansfield QC (instructed by Radcliffes LeBrasseur) appeared on behalf of the Respondent.
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Lady Justice Smith:
"Mr Warner's quality of life will have reduced without regular support and funds should be made available as a matter of priority to ensure that a new care regime can be established."
Below that was a costings box which had no evaluation of costings within it. It said: "Care provided by friends from 1 March 1998 until funds are available to purchase assistance." And on the right: "Not evaluated".
Paragraph 3.08 is headed in block capitals, "FUTURE CARE AFTER MONEY HAS BEEN MADE AVAILABLE TO EMPLOY HELP". Below that, in ordinary type:
"This should be in the form of practical help with looking after Mr Warner's home and social support. He will also need help to deal efficiently with correspondence and other business matters on a day to day basis. For these purposes I recommend the following:
• regular cleaning help, 2 hours per week.
• support worker, 3 hours twice-weekly to assist with domestic planning and budgeting, meal planning and cooking, exploring social activities and attending these with Mr Warner.
• case manager."
"As previously stated, Mr Warner appears to be a normal and healthy young man whose easy social manner often masks his many difficulties. It is therefore very important that his support worker should be confident to deal with his complex problems and have the right working experience and skills."
The report then explains the basis on which the hourly rate has been assessed by relation to a social worker employed by a London borough, and in the costings box below, the annual cost of employing both a domestic assistant and a support worker is set out.
Below that box the paragraph continues:
"I do not believe that Mr Warner would be capable of recruiting staff or administering a payroll. For these and the following other purposes I recommend a case manager:
• to assess Mr Warner's functional abilities and needs;
• to provide training, support and ongoing advice to Mr Warner and his support workers;
• to deal with day-to-day finances and budges;
• to plan and organise a structured weekly programme of activities in co-operation with Mr Warner and his support worker, taking into consideration his needs;
• to act as a source of information regarding local facilities for education work and leisure"
"As a general guide, the level of case management will be highest in the first 2 - 3 months of establishing a new care regime and the subsequent year following such changes"
In the case management requirements box, it said:
"First year of new regime:
First 2 months: 28 hours.
Subsequent 10 months: 30 hours.
Total First Year: 58 hours.
Number of anticipated visits in year 1: 12"
Below that: "Subsequent years: allow 3 hours per month -- "36 hours per annum. Total number of visits: 10"
Below that is a costings box in which the cost of the case manager both for the first year and subsequent years is set out.
"And so, without conducting a mini-trial, the issue for the court is whether the Defendant's case has sufficient merit to proceed to trial. The Defendants need to show that their case is not only arguable but that there is some real prospect of success; to do that they must establish that there is some evidence that Ms Watkins failed to exercise all proper skill and care, diligence and competence when advising the Defendants."
No complaint is now made of that self direction.
"In construing the advice at paragraph 3.07 [that is of Ms Watkins report], it is important to bear in mind that the report was provided on 25 March 1998, in advance of trial and on the material provided to Ms Watkins - she did not know, and there is no evidence she had any grounds for believing that relevant material had not been disclosed to her. Her advice that the funds should be made available "as a matter of priority" indicates that she was advising as to the action to be taken then and in advance of the trial - for my part I find it impossible to construe it otherwise.
25. I consider it unarguable that Ms Watkins was entitled, with her experience of personal injury litigation to assume that the solicitors would take the appropriate action to appoint a case manager to address the Claimant's needs which she had identified and to expect that her recommendations would be implemented before trial so that by the time the trial took place, she, as the care expert, would have been in a position (if required) to assess the Claimant's support and case managements needs as they then were. She had offered to discuss any aspect of her Report with the relevant specialists."
Having expressed that opinion, he shortly afterwards granted summary judgment.
Lord Justice Rix:
Lord Justice Keene:
Order: Appeal dismissed