Sayers & Ors v Smithkline Beecham Plc & Ors

The latest case management conference in the MMR/MR Vaccine Litigation took place on 26 January 2006. It was intended to serve three purposes: (1) to make such case management directions as were appropriate for those ASD/IBD claimants who wish to proceed with their claims; (2) to consider the claims of those non-ASD/IBD claimants who discontinued their claims but who want to resurrect them; and (3) to make such case management directions as were appropriate for those non-ASD/IBD claimants who are continuing with their claims. As before, unless otherwise stated, all references in this judgment to the defendants are to the pharmaceutical companies which manufactured the vaccines, and depending on the context, references to the claimants include their litigation friends – for the most part one or other of their parents.

Prior to the last case management conference, one of the defendants, Merck & Co. Inc. (“Merck”), prepared schedules relating to the claims made against it, identifying those claimants whose claims had been dismissed by consent, discontinued or struck out, and those claimants whose claims were continuing. The other defendants have now prepared similar schedules. It is therefore possible to identify easily those claims which are extant, including the claims of some claimants whose names have been added to the Register of Claimants since the last case management conference. There are 20 extant claims against Merck, plus 4 claimants who are applying for permission to withdraw their notices of discontinuance. In addition, there are 51 extant claims against SmithKline Beecham Plc and Smith Kline & French Laboratories Ltd. (“SK”), and 13 extant claims against Sanofi Pasteur MSD Ltd.

The majority of these claimants are not ASD/IBD claimants. Only 11 of them are ASD/IBD claimants. The application of some ASD/IBD claimants for permission to proceed with a claim for judicial review of the decision of the Funding Review Committee of the Legal Services Commission (“the Commission”) was refused by Leveson J. on 14 October 2005. An application for permission to appeal against that refusal was heard by May L.J. two days before this case management conference, and judgment has not yet been given. But the number of ASD/IBD claimants is now so small that, for the time being at any rate, it is not regarded as necessary to distinguish them from the non-ASD/IBD claimants. The directions which I give for the non-ASD/IBD claimants will therefore apply to the ASD/IBD claimants as well. Tobias Geoffrey-Stewart remains the one ASD/IBD claimant who has a limited form of public funding.

As at 28 September 2005, there were 102 non-ASD/IBD claimants who were legally represented. In the course of reviewing their claims, their solicitors took the view that there was insufficient merit in a number of them to justify their continuance. There are now only 35 claims which are described as “currently being worked on”, and which I have taken to mean are the ones which are still proceeding. In the case of the others, the claimants’ litigation friends have been, or will be, told that their public funding will be withdrawn. It will then be for those claimants’ litigation friends to decide whether to discontinue the proceedings or to proceed without legal representation, the possibility of funding the litigation themselves not being, I imagine, a practical proposition.

The applications by 19 claimants for permission to withdraw their notices of discontinuance were originally to be heard at the last case management conference. They were not heard then, and so they were due to be heard at this case management conference. But supporting evidence was not served on behalf of 11 of these claimants by the deadline for serving it, and pursuant to para. 18(b) of the order of 29 November 2005 those claimants have now been debarred from proceeding with their applications. Of the 8 remaining claimants, 4 no longer intend to proceed with their claims, and so they no longer ask for permission to withdraw their notices of discontinuance. That leaves 4 claimants – Darra Gillespie, Daniel Holland, Aykan Mehmet and Lucy Pearson. All of their claims are against Merck.

Merck’s evidence in opposition to the applications was served on 13 January 2006. That resulted in further instructions being taken from the litigation friends of these 4 claimants. As a result, a potential conflict of interest has emerged between 3 of them – Daniel Holland, Aykan Mehmet and Lucy Pearson – and their solicitors. Daniel’s solicitors are Freeth Cartwright, and Mehmet’s and Lucy’s are Alexander Harris. It may be necessary for further evidence to be filed on their behalf. The Commission has agreed in principle to the transfer of their public-funding certificates to Hodge, Jones & Allen, who are said not to be subject to a similar potential conflict of interest. Accordingly, an adjournment of the hearing of the applications was sought.

Merck took the pragmatic view that since these 3 claimants could not be properly represented at this case management conference, the court had little option but to adjourn the hearing of the applications. I agreed with that. These are important applications for the 3 claimants, and they raise difficult questions of practice and procedure. Although this will have been the second case management conference at which the court’s intention to decide these applications will have been thwarted, in the end there was no alternative but to adjourn them.

Darra Gillespie’s case is different. Now that the facts relating to her application have been properly assessed by her legal team, the case now to be advanced on her behalf is that her notice of discontinuance was invalid, and was therefore ineffective to operate as a proper notice of discontinuance at the time. It will be argued that, to the extent that para. 18 of the order of 25 May 2005 cured the defect, para. 18 should not be interpreted as applying to any claimant who intended to continue with his or her claim. However, Mr Robin Oppenheim for the publicly-funded claimants told me of a second argument, not anticipated by Merck, which would be deployed, which is whether the effect of the notice of discontinuance was affected by the terms of her solicitors’ covering letter. The contention that the notice of discontinuance was not effective is not in addition to the application for permission to withdraw it. It is in substitution for it. I concluded that if the applications of the other 3 claimants were to be adjourned, so should Darra’s application for what would now be a declaration that her notice of discontinuance was of no legal effect. The application notice of 21 July 2005 will have to be amended to reflect the true nature of Darra’s application. It was agreed that her solicitors would submit a draft of the proposed amendment to Merck’s solicitors within 7 days, and if they consent to it, it can be sent to me for my approval.

The only remaining issue was when these applications should be adjourned to. Mr Oppenheim suggested that they should be considered at the next case management conference – which everyone agrees should be in July. Mr Andrew Prynne QC for Merck said that the application should be heard before then. His argument was that Merck is entitled to know sooner rather than later whether the claims of these 4 claimants are going to proceed. Only 9 of the claimants in the list of 35 “currently being worked on” are bringing their claims against Merck, and the dismissal of the applications of these 4 claimants would reduce the number to 5. Merck needs to know which cases it still has to work on. If there is said to be a procedural bar to a claim being litigated, it is in everyone’s interest for that to be determined quickly before either side spends time and effort on the litigation.

That may well be correct in most litigation, but not, I think, in this. There is little, if any, work which Merck needs to do on these 4 cases before the next case management conference. Such work as will be done on them will be done by the claimants’ solicitors in providing the Commission with such further information as the Commission needs to decide whether public funding should continue, and in complying with the case management directions, referred to below, which have been agreed in relation to all the remaining claimants. I acknowledge that the costs of continuing to investigate the claims would be saved if there was an early hearing of the applications and the applications were refused. But the costs of a separate hearing for the determination of the applications would be saved if the applications were heard at the next case management conference. Indeed, it may be that by the next case management conference it will have become apparent that the 4 claimants will not have their public funding continued. If their claims are discontinued for that reason, the applications relating to the notices of discontinuance will have become academic. These applications will therefore be heard at the next case management conference, which has provisionally been fixed for 24 and 25 July. Any further evidence to be relied on by the claimants must be served on Merck’s solicitors and filed at court by 4.00 pm on 9 June 2006, and if Merck wishes to rely on evidence in reply, it must serve it on the claimants’ solicitors and file it in court by 4.00 pm on 30 June 2006.

The small number of claimants who still have the benefit of limited public funding suffer from a variety of different disorders. That calls into question whether their claims should continue in the context of group litigation. That is what the defendants say, and Mr Oppenheim agrees. The size of the cohort and the wide variety of the disorders from which the claimants suffer suggest that this is now the time to revisit the status of the litigation. But that can only be done after the claims have been properly pleaded, and the link between the various disorders and the vaccines has been asserted. Accordingly, the defendants have been pressing for an order requiring those claimants who are continuing with their claims to file and serve – by such date as the court thinks appropriate, but which the defendants suggest should be the end of June – particulars of claims supported by a report from a medical expert in the appropriate field which sets out the claimant’s condition and prognosis, and attributes the claimant’s condition to the relevant vaccine.

The claimants’ advisers were initially resisting such an order, but to understand why it is necessary to go back a few months. At the case management conference on 17 March 2005, I was told that the best estimate which could then be given of when the claimants’ solicitors could complete the steps which were necessary before the Commission could decide whether to grant funding for the claims to proceed was the end of November 2005. It was thought that the Commission would therefore be in a position, albeit only just, to make that decision by this case management conference. That estimate has proved to have been unduly optimistic. The Commission is still some way off from being able to do that.

The events which have occurred since 17 March 2005 have been described in the latest statement of Mr Paul Balen of Freeth Cartwright. It was decided to select a small number of claims which covered the various disorders said to have been caused by the vaccines. 14 such cases were chosen, and whether there was an arguable scientific link between the vaccines and those disorders (which was step (iii) of the three steps referred to in para. 33 of my judgment delivered following the case management conference on 17 March 2005) was considered by an expert in that particular field. The advice from those experts was then applied to the remaining claimants. That was how the number of cases which it is proposed should proceed have come down to 35.

The next step which needs to be done is that those of the 35 claimants whose claims were not included in the 14 representative claims must have their claims assessed by an expert in the relevant field to see whether there is an arguable scientific risk between their disorders and the vaccines. Funding for that work has been approved by the Commission, but before that work can be done, the budget for it has to be agreed with the Commission within the framework of a contract between the solicitors and the Commission governed by the Commission’s Multi-Party Action Arrangements 2000. When the reports of these experts have been received, the Commission will decide whether the claims meet the conventional criteria for funding relating to the merits of the claim, its value and the cost of funding it.

However, the Commission has a limited budget for funding claims to which the Multi-Party Action Arrangements apply. There is an annual affordability review where cases competing for funds are assessed and ranked. Only the cases ranked with the highest priority and those cases capable of being funded from available resources will then be funded. So even if the other criteria are met, there is no guarantee that a case will be funded. The next affordability review is due to commence in April, and will last about 3 months.

There was no chance that what the defendants wanted done by the end of June could be done by then on this timetable. So the claimants’ advisers were suggesting that consideration of further case management directions should be deferred until the next case management conference. That is a course which the Commission would have preferred the court to take. However, the Commission acknowledged that this would simply put things off yet again. It realistically recognised that the court would not sanction a course which resulted in the taking of the normal steps in the litigation being deferred indefinitely. It has therefore said that exceptionally it will not allow the affordability review to hold things up. Accordingly, provided that

The upshot of all this is that the claimants’ advisers do not oppose the directions sought by the defendants, and I make the orders contained in paras. 1 and 3 of the revised draft of the order sought by the defendants, which seem sensible to me. The extent to which the particulars of claim should include the basis on which it is to be argued that the vaccines caused the disorders was debated before me. Mr Oppenheim accepted that “the proper basis for causation” must be set out. That will not be the same in every case. Some cases will require greater particularity, and others less. Although the claimants’ advisers know that the defendants are expecting to see how the case on causation is put, it is a matter for the claimants’ advisers to decide how to plead their case. If the defendants take the view that it has not been sufficiently pleaded under the Rules, they can take such steps as the Rules permit them to take to get the particulars of causation to which they claim they are entitled in the particular circumstances.

That leaves what the consequences of non-compliance with this order should be. The issue is whether there should be an order striking out the claims of any claimants who fail to comply with this order. It is said that an “unless” order should not be made, because this is the first time that the claimants have been ordered to file their particulars of claim, and an “unless” order is inappropriate for that reason alone. But more importantly, the timetable is one which the claimants and their advisers have little control over. If there is any delay in the provision of experts’ reports in the case of the claimants whose claims were not included in the 14 representative claims, or if there is a delay at any stage on the part of the Commission, which results in the deadline passing without compliance with the order, the striking out of the claims would amount to a serious injustice.

I do not agree. There is no rule that an “unless” order cannot be imposed for a failure to comply with an order made for the first time. It may be unusual, but if it is appropriate it may be done. I accept that the claims of these claimants have only been resurrected since the case management conference in July 2004, following the restoration of public funding for them. But it is still very many months since that funding was restored to enable the possible link between their disorders and the vaccines to be investigated. It will not be until July that the litigation will be where it was intended it would be today. I do not suggest that the claimants’ advisers could have proceeded at a quicker pace. That has not been investigated. But it is important to inject some urgency into the progress of the few remaining claims so that things are not allowed to drift. An “unless” order is the appropriate means of achieving that.

It is, of course, for the court to dictate the pace of the litigation. Even then, I might have taken a different view if I had thought that the end of June was an unattainable deadline. But it is not. After speaking to Mr John Baker, the case manager within the Commission responsible for this litigation, Mr Oppenheim told me that it would take 3 weeks “or so” for the budget to be agreed. It would then take 6-8 weeks, subject to the availability of the experts, to obtain the remainder of the reports. It would then take 2-3 weeks for the Commission to decide whether the remaining claims met the merits and cost/benefit analysis criteria. That would take us into the middle of May or thereabouts, and even allowing for some slippage, that should give ample time for each case to be pleaded by the end of June.

If there are truly exceptional problems which make compliance with the deadline unattainable – whether for reasons relating to particular claimants or for reasons which affect all of them – it will, of course, be open to the claimants to apply for an extension of time to comply and for relief from the sanction of striking out. But an “unless” order makes the need for those reasons to be compelling ones. If they are compelling, the claimants will not be disadvantaged in the long run.

For these reasons, I propose to make the order set out in para. 2 of the revised draft order sought by the defendants.

Merck’s solicitors, Lovells, have been maintaining the Register of Claimants. They originally asked for that task to be taken over by Freeth Cartwright. They are now prepared to continue that task until the next case management conference.

The litigation friends for 3 of the claimants making claims against SB – Francis Hamlyn, Joseph Kruk and James Lakin – wish to discontinue the claims, and the litigation friend for one of them – Victoria Gibson – has agreed to the settlement of her claim. I therefore make the orders set out in paras. 4 and 5 of the revised draft order sought by the defendants.

The claim of Matthew Butler was originally recorded as having been struck out. At the last case management conference, it was agreed that his claim was to be treated as having been discontinued. Purported effect was given to that by referring in the appropriate schedule to the request that it be treated as discontinued. The appropriate schedule should record that his claim was in fact discontinued.

The orders for costs will be those set out in paras. 6 and 7 of the revised draft order sought by the defendants.