Newsletter. The challenges of acting for people later in life. Brain and Spinal Injury. Inside this issue: Leigh Day Sping 2015 Edition Issue 4

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1 Brain and Spinal Injury Newsletter Leigh Day Sping 2015 Edition Issue 4 Inside this issue: Leigh Day are legal experts in the field of brain and spinal injury cases. We understand our clients needs and help them to adapt to a different life after experiencing a serious and life-changing injury. We hope our newsletter will show our unwavering commitment to achieving the best care, rehabilitation and treatment for our clients. This issue includes articles on: The challenges of acting for people later in life page 1 Personal perspective: Dan Burden on ageing with a spinal cord injury page 3 Confusing hospital stay shortened for Alzheimer s client Mrs R page 4 Trio take on London to Amsterdam for Spinal Injuries Association, with two on a tandem page 5 Settlement for 12 year-old cerebral palsy client page 6 Disabled charity research reveals shocking lack of suitable housing for disabled people page 7 The Purple Workforce: follow up round table event page 8 Demonstration: medical exoskeletons for SCI patients page 9 The meaning behind the Montgomery Judgment page 10 Legal eagles skills challenged by Back Up page 12 The challenges of acting for people later in life by Sally Moore and Rachel Botterill Accidents can happen to anyone, young or old. You need specialised experience when acting for people who are seriously injured in their later years to achieve the best possible recovery, long term quality of life and compensation. People are living longer and remaining more socially and economically active, often working, driving and playing sport into old age. In the UK, a fifth of the UK population is over 60. By 2034, 23% of the population will be over 65. Our experience of acting for seriously injured elderly clients leads us to take a different approach with their claims to achieve the best outcome for them. Time is not on the client s side When acting for someone younger with severe injuries, a more wait and see approach may be warranted, whereas if you are acting for someone in their eighties time is a luxury this client does not have. Clients and their family do not want litigation hanging over the last years of their lives. When the prognosis is reasonably clear, Article continued on next page>>

2 From page 1 it makes sense to motor forward with the valuation of a claim, in order to get it resolved quickly. Mr S, a man in his early eighties, had a high level spinal cord injury and was permanently ventilator dependent. The judge was told that the defendant s estimated remaining life expectancy was less than 1 year compared to the claimant s of 2.5 years. Faced with this information the judge made an order fasttracking the exchange of expert evidence and schedules. When it was suggested to the judge that medical and quantum experts in catastrophic claims were not used to operating within timeframes counted in weeks, he basically said hard luck and where there s a will there s a way. The judge was right and the consequence of the order meant that the parties worked collaboratively together to push the case to conclusion in a much shorter timeframe than usual. Coping with pre-existing medical conditions and the impact on recovery Elderly clients are more likely to have pre-existing medical conditions, so you need expert input on both the impact of the accident and the relevance of their medical history. Where someone was fit and active before their injury it is important to prepare detailed statements setting this out. Where there are pre-accident medical problems it is especially important to put forward evidence that the claimant was still leading a full and active life. All personal injury cases involve lawyers looking at what happens to a claimant as they age no matter how old they are at the time of injury. When dealing with a client in their late years who has sustained a serious injury, insurers tend to focus on the client s pre-existing health problems. A 70 year-old brain injured woman, who we acted for, had diabetes and arthritis. The defendants tried to argue that the care claim should reflect the fact that she was going to need care in any event. We had strong expert and witness evidence which supported our argument that despite her medical history she was healthy for her age, active and living completely independently and this was likely to have continued for many years to come. Treatment and therapies don t let people write your client off Just because someone is older it doesn t mean that they will be satisfied with anything less than a full recovery or, if not, the best recovery they can achieve. Any elderly client, no matter how minor or serious their injuries, should have the same access to rehab and treatment as someone who is fit and young. Some rehab units appear to have age limits for brain injured patients. In the above case we struggled to find a placement for our client in a brain injury unit due to her age, but it was through the perseverance of a good case manager that we achieved this. After a period in an NHS setting we used an early interim payment to move her to a private unit where her level of recovery outstripped all expectations. (Mind the) generation gap Clients of the make do and mend generation tend to have a completely different mind-set to spending interim payments on case managers, carers, equipment, adaptations, for e.g. new bathrooms to install walk in showers etc. This is even the case when they have a full liability claim and we, and the case manager, are advising what they need is reasonable and will be recoverable. Given the tactical importance of spending interim payments to set up care, support therapies, buying equipment etc. this requires skilled client handling to ensure the client doesn t end up with considerably less damages because of her reluctance to spend interim payments. Life expectancy and the form of the final award Issues of life expectancy arise in every case. For older clients the issue of life expectancy is brought into sharp focus because most clients in later life will have some health problems aside from those caused by their injury. Experts will frequently have very differing views on how much obesity or diabetes will reduce life expectancy and as with cerebral palsy children the parties experts may take very different approaches to a clients longevity. For older clients the issue of life expectancy is brought into sharp focus because most clients in later life will have some health problems aside from those caused by their injury. In a recent case, we overcame this problem by agreeing that more of the client s damages should be paid by annual payments rather than a lump sum as the dispute on life expectancy was significant. Whilst care and care management tend to be paid as an annual payment in bigger cases it is also possible to have deputyship costs, significant therapy and equipment needs as periodical payments. The downside is that there is smaller lump sum, but the claimant s ongoing needs will be paid for as long as they live

3 From page 2 A house or a home Where a client has suffered a severe injury and their pre-accident home is no longer suitable life expectancy issues have a very real effect on how accommodation problems can be solved. When a client needs to purchase new and more appropriate accommodation the usual Roberts v Johnstone methodology used to calculate the additional capital needs will create very significant problems for a claimant in later life because the award will not generate sufficient capital to purchase a new property. In contrast, adaptation costs are fully recoverable so we have had to ask architects to be a bit more imaginative about what can be done with the client s existing home. In the case of the eighty year-old spinally injured client we used this approach, and he returned to his adapted pre-accident home. There is a lot to be said for clients going home and whilst the solution was not perfect there were very significant emotional benefits for the whole family. Other practicalities Even with really good lawyers the legal process can be bewildering for clients whatever their age, and many older people will find it a great worry even when litigating on a no win no fee basis. In a brain injury case the client may need a litigation friend, typically and ideally this will be a spouse. If a spouse finds taking on both the role of supportive partner and litigation friend a heavy burden, consideration should be given at the outset as to whether to instruct another member of the family to be the litigation friend. At the beginning of the process the solicitor may need to spend more time with clients, to build confidence that the solicitor knows what they are doing and has a good understanding of what is involved in the process. The additional time will be well spent. Acting for clients in later life can be complex and challenging, in that their cases may raise issues that you don t frequently encounter. The rewards of helping someone who has been seriously injured at an age when they might have otherwise considered they were safe from something dreadful befalling them can be great. Rachel Botterill, Solicitor / Sally Moore, Partner and Head Personal Injury department. / Personal perspective: Dan Burden on ageing with a spinal cord injury by Dan Burden, Head of Public Affairs, Spinal Injuries Association When I was injured in 2001 the general belief was that spinal cord injury (SCI) was a young person s condition. However, if you visit one of the UK s 11 SCI Centres today the picture is quite different. There has been a significant growth in the number of older people acquiring SCI, due to the sheer weight of numbers as the Baby Boom generation retires and a tendency to be more active in older age. The change in demographic has even seen falls overtake road traffic accidents as the main cause of injury in recent years. Once an older person becomes SCI they face additional problems, finding it harder to adapt both physically and mentally. SIA s outreach team now finds it is supporting newly injured people with different needs, goals and outcomes from the younger SCI person. Issues such as proximity to home and family are much more important. Understandably older patients are often reluctant to be treated in a remote SCI Centre three hours away from where they live, even if this is where they will receive specialist treatment. The current pathway from referral to rehabilitation does not fit well with this group. NHS England Commissioners have recognised this and, with SIA, will be looking at the current SCI Care Pathways to see how they can be adapted to better suit the needs of older SCI people. It is a brave new world and together the SCI community is slowly finding its feet

4 Confusing hospital stay shortened for Alzheimer s client Mrs R by Penny Knight, Partner and Head of Cycling team, Personal Injury department As Mrs R walked along the pedestrian area in Nottingham Town centre on 14th August 2013 she was struck by a car and subsequently dragged under the vehicle. She sustained multiple injuries and faced the threat of amputation of her left leg. Prior to the incident, in 2012 and 2013, Mrs R was diagnosed with Alzheimer s disease and a mild form of dementia. The incident left Mrs R needing more support and care; fortunately we were able to aid her by getting early access to the rehabilitation she needed and ongoing care to sustain her quality of life. Mrs R s Story Prior to the accident Mrs R lived a fairly independent lifestyle; whilst she lived in sheltered accommodation and received regular assistance from friends and family, she was able to look after herself, often cooked and knew her way around the city very well. Since Mrs R suffered the injuries caused by the accident she has lost much of this independence and now requires support to walk and is unable to get around with the use of a frame. Mrs R s Injuries The incident left Mrs R with cuts to her forehead, further cuts to her left finger and degloving injuries to her left leg and left arm that caused an infection. How Leigh Day were able to assist After being contacted by Mrs R s daughter, we decided, due to complexity of the claim, not to pursue the claim through the Road Traffic Accident portal and issued a letter of claim immediately. It was vital for the care needs of Mrs R that the claim was settled speedily. Fortunately we managed to achieve a settlement within 9 months, when an average claim like this can take up to two or three years, and Mrs R was able to have access to funds to ensure that appropriate care was in place for her rehabilitation and ongoing care needs. Penny Knight, Partner, Personal Injury department / Impact of dementia The risk of dementia increases with age 1 in 688 people under 65 have dementia. 1 in 14 people over 65 have dementia. Scale of dementia 1 in 6 people over 80 have dementia. There were initial fears that the infection on her leg would require amputation, but fortunately the medical team at the City Hospital, Nottingham were able to bring the infection under control. Mrs R was treated in hospital for a total of 51 days. The complexities of treating a patient with Alzheimer s became apparent during this time. Mrs R was often confused and disoriented while she was being treated, not knowing where she was and why she wasn t at home. Her condition also meant that when she returned home she required more care than a patient who does not have a condition such as Alzheimer s. Unfortunately, Mrs R suffered a fall at home and it was decided that she would no longer be able to remain in her accommodation as the staff there did not have capacity to adapt to her needs. Alzheimer s Society (2014a). Dementia UK: second edition. London: Alzheimer s Society. Based on 2013 figures Source:

5 Trio take on London to Amsterdam for Spinal Injuries Association, with two on a tandem by Anna Dews, Trainee Solicitor, Medical Negligence department London to Amsterdam, 350kms over three days, not an easy task. But my colleages Kate Whiting, Rachel Botterill and I had a good motivation - riding for the SIA. To make things interesting Kate and I decided to take the challenge on a tandem bike. This required lots of teamwork and communication, but when we got the hang of it flew along quickly. In total we raised 1385 for the SIA. In our Medical Negligence and Personal Injury departments we often work with clients who have suffered from a spinal cord injury and so it was a good opportunity to raise some funds for the incredible work that SIA do. I have joined the firm recently and and was keen to learn more about the charity. We shared the ride with three hand cyclists Gary, Luke and Jonathan. One thing that struck me was the importance of the work the SIA do mentoring people during their rehabilitation after a SCI. Gary works for the SIA and has a SCI himself, it was clear just how essential it is to to show (in Gary s words) that life does go on. They wouldn t like me to use the word inspirational, but Gary, Luke and Jonathan s grit and determination was incredibly infectious. The hand cyclists willpower was beyond belief. During the trip we had a short race with Luke Delahunty (pictured right), his two arms managed to outstrip our four legs going full out! All in all, it was an incredible experience down to what felt very much like a team experience with encouragement and support from every single person along the way. It made the saddle soreness and burning thighs for a couple of days afterward all worth it. Anna Dews, Trainee Solicitor, Medical Negligence department /

6 Settlement for 12 year-old cerebral palsy client by Olive Lewin, Partner, Clinical Negligence department How a failed battery on a Sonicaid led to a mishandled birth requiring an emergency resuscitation and settlement 12 years on. Our client was born at Guy s and St Thomas Hospital in Her mother was admitted to the hospital s water birth unit as she had planned. Her care was managed by a midwife and student midwife. Our client s fetal heart was listened to using a Sonicaid early on and no problems were noted. However, at the midwife found it difficult to differentiate between the contractions and relaxations of the uterus. When she realised that the battery on the Sonicaid had failed the midwife left to find a new one, leaving the student midwife to manage the labour. The midwife was unable to find a Sonicaid that was suitable for use in a water birth, but our client s mother was told to continue with her labour in the water as planned. Our client s mother was not examined to confirm that she was in the delivery stage of labour, or that there were no fetal heart abnormalities before our client was delivered in the water. Our client was born with the umbilical cord wrapped twice around her neck, which would have shown as fetal heart abnormalities if she had been monitored. She was blue and floppy and in poor condition when she was born. A paediatrician carried out resuscitation for several minutes and our client was transferred to the Special Care baby Unit, where she stayed for four days. After her birth our client was diagnosed with dyskinetic cerebral palsy. In May 2015 we were proud to support: CBIT s Superheroes & Princesses Guy s and St Thomas Hospital admitted that they had failed to monitor our client s mother adequately and have settled the claim. It is highly probable that our client would not have been born with cerebral palsy if the midwife with the responsibility for her care had removed her from the birth pool when it became obvious that the fetal heart could not be monitored properly. I hope that Guy s and St Thomas Hospital will reinforce to all their midwives how important it is to ensure that the fetal heart is monitored throughout labour to pick up on any signs of distress in the baby. Olive Lewin, Partner, Medical Negligence department / and Hats for Headway

7 Disabled charity research reveals shocking lack of suitable housing for disabled people Leonard Cheshire Disability is a UK charity that supports disabled people. It has published research showing that thousands of disabled people are living in completely unsuitable housing. People living with disabilities, including people who have experienced life-changing spinal injuries, or brain injuries, will often need adapted accommodation and specialist equipment to help with their everyday activities. The charity s research, The Long Wait for a Home, reveals a disturbing picture for thousands of disabled people in the UK who are living in homes that are damaging to their health and dignity as councils fail to provide them with the help they need and are entitled to. Nearly 2,500 disabled people every year wait for more than a year to get the vital funding that can help make their homes accessible. The Disabled Facilities Grant (DFG) is a means-tested grant for disabled people who need to adapt their home to give them freedom of movement around their accommodation. In January 2015, a Freedom of Information request was submitted to all 360 councils with a responsibility for housing. Leonard Cheshire received responses from 245 councils. The report says that 62% of councils broke the law at least once last year by failing to fund adaptations within the 12 month deadline and 44% of councils had examples of disabled people waiting for more than 24 months for payments. Such failures to provide funding to disabled people mean that wheelchair users can wait for years before they are allocated The report says that: 62% of councils broke the law at least once last year by failing to fund adaptations within the 12 month deadline 44% of councils had examples of disabled people waiting for more than 24 months for payments a home they can move around easily. By failing to find suitable adapted accommodation disabled people are denied the chance to live independently, and can be stuck for years in residential care. Some basic adaptations which allow disabled people to live an independent life include installing ramps and widening doors to allow wheelchair access, handrails and lifts, and providing a downstairs bathroom. The findings of this report really are shocking. Disabled people should be able to live a dignified life in suitable accommodation. Many disabled people suffer the indignity of washing themselves at a kitchen sink, having to be carried to a bathroom, or finding that they cannot manoeuvre their electric wheelchairs around their homes and are stuck in one room for most of the day. The charity is recommending that councils:»» Ensure no disabled person waits longer than 18 months for essential adaptations to their home.»» Increase their spending on DFGs to ensure that all eligible disabled people receive grants within the legal time limit. This will also reduce the pressure on social care budgets.»» Prioritise disabled-friendly homes and adaptations when making Better Care Fund plans»» Ensure that all new homes are built to Lifetime Homes standards and 10% of new homes are built to full wheelchair accessible standards

8 The Purple Workforce: follow up round table event by Emma Satyamurti, Partner Employment Department In 2014 Leigh Day commissioned independent research into the experience of disabled people in the workplace, and published the findings in a report called The Purple Workforce. Leigh Day convened a round table conference in February 2015 to draw together expertise which could develop new initiatives to contirbute to progress in this area. The Purple Workforce report and Round Table helped bring together a group of concerned organisations to share ideas on improving the working lives of people with disabilities. At Leigh Day, we ask ourselves, can we approach the situation differently having formed these new relationships? It is clear that good practice does exist we can promote this and use it to encourage others. A paradigm shift is needed to see people as people on a spectrum of abilities and difficulties, not as disabled and non-disabled. Developing a climate where people feel free to ask for, and offer, help and discuss potential improvements will benefit everyone. The more disabled people come forward, the more disability will be normalised and the greater the chance for positive change we should do whatever we can to support this, including informing people of their legal rights. Sometimes, in encouraging employers to improve their record, the stick is important but at other times a different approach is required as subtler dynamics are at play. Discrimination is not just black and white, there are shades of grey, and we should attend to these subtler factors and encourage employers to do the same. The Purple Workforce report and Round Table event allowed a more strategic discussion about tackling the problem of empowering people with disabilities in the workplace. The Round Table discussions were lively and productive, with a number of different perspectives represented and many insights and ideas shared. We are encouraged that the development of contact between organisations working in the sector will allow these problems to be addressed more fully and multi-dimensionally. While the information in the report was not a shock to those working in this area, the opportunity to reflect and consider new actions and priorities is a meaningful addition to the field. Key points were captured from the discussions in order to provide a reference point for any future meetings or actions arising from the Purple Workforce project. You can download the Purple Workforce Report at Emma Satyamurti, Partner, Employment department /

9 Demonstration: medical exoskeletons for SCI patients by Rachel Botterill, Solicitor Personal Injury department Rex Bionics are pioneers and leading providers in the field of medical exoskeletons. They focus on rehabilitating and improving the mobility of patients with spinal cord injuries. Steve Toon and Tom Priestley of Rex Bionics came along to Leigh Day s offices during February to demonstrate the REX hands-free robotic mobility device. Tom, Product Trainer and Physiotherapist, explained how the device works and how it can benefit our clients who have sustained spinal injuries. Tom explained how wheelchair users are at risk of developing numerous medical complications caused by extended periods of sitting. REX enables users to spend time standing, walking and exercising, which has the potential to result in significant health benefits. Steve was able to provide useful information with regard to sourcing an exoskeleton and costs. Exoskeleton technology is clearly the future for clients with SCI and our specialist SCI solicitors found this demonstration highly informative. Rachel Botterill, Solicitor /

10 Patient Choice in Light of the Montgomery Judgment by Katherine Sirrell, Solicitor, Medical Negligence department The recent Montgomery judgment has created a stir amongst medical negligence lawyers, changing the legal landscape surrounding patient consent. For more than fifty years one case has dominated medical negligence case law. In Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 the test of reasonableness re patient consent determined that a doctor could withhold information about potential risks, if it would be accepted as appropriate by a responsible body of medical opinion. This was upheld in the case of Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871 which said it was for the doctor to rely on the test of reasonableness when assessing whether a risk was material to the patient and therefore whether they would attach such significance to the risk that the doctor ought to disclose it to them. The risks then were very much still from the doctor s perspective of the patient s wishes. Time moved on to Wyatt v Curtis [2003] EWCA Civ 1779 in which Sedley LJ distinguished between substantial and grave risks. He held that a patient and doctor may differ on their opinions of the same, and that the doctor should try to place himself in the patient s shoes when assessing on advising regarding risk. This at least recognised that doctor and patient may have different objectives, but the decision was very much in the shadow of Bolam. The gradual lean to patient autonomy continued and in the 2004 case of Chester v Afshar [2004] 3 WLR 927 Lord Bingham said that it was for patients to make decisions affecting their own bodies. But still, the ball was very much in the medical professional s court to assess the graveness of a risk and then determine whether or not to disclose the same to the patient. In the Montgomery appeal in March 2105, the Supreme Court judgment ruled that the burden is not on the patient to ask about the risks and options associated with any particular procedure; instead it is for the medical practitioner to disclose them, even if the risks are small, as long as they are material. This case on consent confirms the shift in the paradigm of the relationship between patient and doctor. In the Montgomery case, her doctor failed to tell Mrs Montgomery that her specific health concerns meant her child risked shoulder dystocia during delivery. At first this was ruled as acceptable under the Bolam test i.e. that other doctors would think this omission was appropriate as the risk of grave injury to the baby was small. However, on appeal the Supreme Court decided that a doctor was under a duty to disclose all material risks to a patient and that it was negligent to fail to do so. The Supreme Court ruling means that the Bolam test is no longer appropriate in consent cases. What does this mean for the relationship between patients and their doctors? We hope that this change will improve public and individual patients trust in their treating doctors if they are compelled to tell patients about all associated material risks of a procedure and give the full picture. A General Medical Council (GMC) document cited in the Montgomery judgment acknowledged that informing your patients must be integral to a doctor s professionalism. GMC Guidance has for some time advocated the benefits of patients and doctors making decisions together (arguably

11 ahead of the courts when considering patient autonomy) and their 2008 guidance suggested that risks should be disclosed and discussed together, even when very small. A full and frank discussion is even more important in the age of social media and the internet when information is so accessible. The general public is reasonably well informed and capable of understanding medical issues when explained to them, this was recognised in as a factor in the Montgomery judgment. There has been a gradual shift of emphasis onto patients rights. The judgment recognises patients right to have the risks of treatment properly discussed with them so that they can make an informed decision on how to proceed; this is bound up with the very right to competent medical care and treatment. How could this affect future clinical negligence claims? It should now be possible to prove breach of duty in consent cases even if a doctor has acted in accordance with a responsible body of medical opinion. Cases already decided since Montgomery demonstrate where the decision is likely to have an effect. In the case of A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 it was held that a one in a thousand risk of a chromosome disorder was not material enough to warn a mother about in relation to the facts of her pregnancy. This is not necessarily a turn away from Montgomery. It is to be seen very much in context that it was held the mother would not have terminated the pregnancy anyway and that the facts of the case did not raise particular suspicions about the disorder so as to make the risk significant. In the recent case of Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 the patient successfully argued that they were not properly advised as to the risks of pulmonary embolism from a hernia operation. It was held that such a complication occurring was a known risk and that in light of Montgomery the ordinary patient would expect to be given this information and that the Trust breached their duty of care in not giving this advice although the risk was small in many cases. It is of note that the judgment referred to modern, safe and responsible medical practice, as supposed to, presumably, the old approach of doctor knows best and suggests future appreciation by the courts of patients expectations. It will be interesting to see how Montgomery affects future medical negligence cases but it is hoped this is a step in the right direction in recognising patient autonomy and involvement in decision making regarding their health and treatment. Katherine Sirrell, Solicitor, Medical Negligence department / Meet Marilyn the penguin If you have been into the Leigh Day reception area recently you may have noticed our latest addition. Marilyn the Penguin is a mosaic artwork sculpture by survivors of brain injury from Headway East London s art therapy studio. Headway uses different forms of artwork as a vital part of rehabilitation for people who are recovering from or living with a brain injury. Leigh Day purchased this artwork to help support the continuation of this fantastic program. You may ask where Marilyn got her name from, you can see in the picture below left that the artists have used a tile with Marilyn Monroe as part of the mosaic pattern. Next time you are in the office, see if you can spot this namesake tile!

12 Legal eagles skills challenged by Back Up Leigh Day and the BackUp Trust kicked off spring with a wheelchair skills challenge for legal professionals. The challenge, based on Backup s training for newly injured patients, gives a real insight into the difficulties faced by wheelchair users every day. It was a tough test of coordination and balance for many of our guests. Colm Nugent of Hardwicke Chambers was the Star In A Reasonably Priced Wheelchair, who won the individual time trial. Watch Jane s swift run of the course at leighday.co.uk/news/events But even he was eclipsed by Backup s Jane Sowerby, a former Paralympian, who showed everyone how it really should be done, knocking 50% off Colm s time. You can watch a video of Jane via the link to the right. Thanks to all the chambers involved: Doughty Street, Hardwicke, 9 Gough Square, 2 Temple Gardens, Outer Temple Chambers, 12 Kings Bench Walk and Harmans Costs. Taking the challenge - clockwise from top right: Jane Sowerby (BackUp), Suzanne White (Leigh Day), Rebecca Jones (Hardwicke), Rachel Botteril (Leigh Day), Gauring Naik (9 Gough Square), Nick Brown (Doughty Street), Sean McCallion (BackUp), Jaime Brooks (9 Gough Square) and James Scott (Harmans)

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