The 2013 case of Loughlin v Singh is well known. A rehabilitation programme was criticised as being ill directed and not being progressed in a timely manner. The trial Judge disallowed 20% of past care costs, on the basis that the case manager was ineffectual.
I am not clear what evidence was relied upon to come to that conclusion, however the judge records that he was not satisfied with the claimant's explanation as to the delay. In making this finding the judge appears to have reversed the usual onus of proof. He required the claimant to show the care package had progressed reasonably, not the defendant to prove the contrary.
I am informed by the claimant’s solicitor that the only reason they did not appeal was because they did so well on other heads of claim. An appeal might well have brought a counter appeal and resulted in a larger reduction for the client, even if successful on that point. As such the case remains relevant.
The sad outcome was that Kristopher Loughlin’s fund managed by his deputy did not recover this expenditure. The loss would have been considerable.
Where a fund suffers a loss as a result of negligence, the deputy has a duty to investigate the circumstances. He must consider whether to recover those funds, through legal action if need be.
The criticism in this case was based on a failure to progress a rehabilitative programme and in particular to commence an effective sleep hygiene regime. In his decision the Judge did not make a finding of negligence; he merely indicated that in his view there was an unreasonable delay. So was there negligence?
In cases such as this the deputy will be intimately aware of the circumstances around the “ineffectual” case work. He will be aware of the client’s condition and the reasoning behind decisions made by the case manager and the deputy. The deputy perhaps only second to the case manager will know the full story.
In this case there were many factors which made an effective programme difficult. For example, Kristopher was 18 years old and his behaviour was challenging, as shown by his arrest for being drunk and disorderly. His stepfather had recently died and a friend had during this period committed suicide. It is likely that there was a series of reasons why the regime was not commenced. Each reason would have to be considered before a view as to negligence could be taken.
A case manager obviously has a duty towards his client and can be negligent in discharging that duty. However, proving a breach of that duty is a difficult matter. It is very difficult to prove negligence on the basis of something someone did not do quickly enough. It is not enough to say, as the judge did here, that things should have happened quicker. One has to show that no reasonable case manager would have been unable to start a regime sooner.
As the onus of proof would be upon the deputy to show negligence, to be confident of succeeding the delay would have to be manifest and obvious. In this case the delay was considerable, but the reasons for delay seem compelling.
Further complications can arise if there is a failure to mitigate. For example, in this case should there have been an appeal?
Even if the deputy were to decide that there had been a breach of duty, before making any formal claim against a case management company he would likely want to go back to the Court of Protection to seek approval to take a claim.
At that stage the Court is likely to want to see a barrister’s opinion, which said that there were good prospects of success. The Court would also want to know if it is cost effective for the fund to take a claim. The deputy would have to do a detailed costs benefit analysis, weighing the benefits of success against the costs of losing. The costs of losing would include litigation costs, deputyship costs and the potential exposure to an adverse costs claim. Unless the prospects of success were overwhelming and the damages were very considerable, perhaps over £100,000, I believe that most deputies would be very reluctant to proceed.
So in conclusion I think that case managers must always be mindful of their duty to use their best endeavours to progress rehabilitation programmes. They should also be aware of the need to produce clear contemporaneous notes which can explain the reason for any delay. Failure to do that might in itself be negligence, if it results in compensation being reduced. However, the chances of successful claim are very low, unless there has been clear negligence and large losses.