The rise and fall of group actions: a front-line view

In the summer of 1984 I represented a little girl who was thought to have suffered serious and irreversible brain damage as a result of being vaccinated for whooping cough. She was one of some 200 children in the same predicament who had sued the government which had promoted and operated the DPT vaccination programme. Group action procedures were not considered in those days but at least the individual plaintiffs had the benefit of a properly funded and wellfunctioning legal aid system.

In the event, the test case approach was adopted. It proved to be disastrous. The case that emerged, somewhat haphazardly, was that of Kinnear. His trial in the spring of 1986 collapsed on the 29th day due to evidential difficulties. Another plaintiff, Loveday, applied to be the lead case. The Wellcome Foundation, the manufacturer joined in as a defendant and the court ordered the trial of the preliminary issue: can or could pertussis vaccine cause permanent brain damage in young children? After a trial lasting 65 days Stuart-Smith J decided, in March 1988, that the plaintiff had not proved that it could.

However more pharmaceutical mass litigation was emerging. Claims were brought in 1985 alleging that injury had been suffered by numerous plaintiffs who took the anti-inflammatory drug Opren. A master statement of claim, running to nearly 100 pages was served on Eli Lilly, the manufacturers and the government (which was responsible for the licensing regime brought in under the Medicines Act 1968, itself a response to the Thalidomide tragedy). It was the first example of group litigation in the UK. Hirst J, using the approach of 'co-ordinated arrangements' used unprecedented and innovative means of dealing with the large numbers of claims that appeared to throw up common issues. He acted within the framework of the old Rules of the Supreme Court but, with the parties' help and co-operation, managed the litigation both fairly and efficiently. He made orders and gave indications of universal application relating to the ascertainment and identification of the group, limitation, cut off dates, the preparation of generic pleadings and cost sharing orders (see Joseph Owen Davies v Eli Lilly [1987] 1 WLR 1136 at 1138 for Donaldson M R's commentary on the unique place of the Opren litigation in English legal history).

In the event, in 1987, the claimants settled their relatively modest claims for a global sum. Out of that global sum each of the plaintiffs was allocated an appropriate share by their lead solicitors. Where a plaintiff did not accept what was offered, Hirst J acted as arbitrator and decided whether it was reasonable and, if not, he decided upon a reasonable sum.

More group litigation

However, once the settlement became known, another group of plaintiffs emerged. These late arrivals to the litigants' ball had limitation problems. They were represented by new solicitors. The litigation was assigned to Hidden J. Lead cases went to trial on limitation and, save for one unusual case, were dismissed in 1992 (see Nash v Eli Lilly [1993] 1 WLR 782), leading to the collapse of what remained of the litigation.

But more group litigation was already underway. This was the benzodiazepine litigation. In January 1990 a draft master statement of claim was sent to Wyeth and Roche, respectively the manufacturers of Ativan and Valium. This would prove to be the largest, most expensive and, arguably, the most catastrophic piece of group litigation in English legal history. The court, in the robust form of Ian Kennedy J, became seized of it in June 1990. He gave a variety of directions relating to cut off dates for those that wanted to join the group and as to the preparation of master pleadings, commentaries and particulars.

In essence, the plaintiffs' case was that those who took these widely prescribed drugs became dependent upon them and suffered unpleasant and damaging symptoms when attempting to withdraw. In the event it became clear that, despite legal aid being granted to 5,000 plaintiffs, most of the cases were of modest worth and had problems in proving medical causation. Following an audit of the cases by the Legal Aid Board, in January 2003, funding was withdrawn.

The claims of the few which attempted to continue without funding, were struck out as an abuse of process (see AB v John Wyeth and Roche Products [1997] PIQR P385). According to the admirable research recently carried out by Professor Rachael Mulheron (see 'Reform of Collective Redress in England and Wales' '“ a research paper submitted in 2008 to the Civil Justice Council), this litigation cost the British taxpayer £30m. There has been much debate about why this failed so spectacularly. However, what most commentators are likely to agree, is that this case helped to poison the well of legal aid and public funding.

However, undeterred by the refusal of legal aid, solicitors agreed to act, on a conditional fee (permissible since the autumn of 1995 but which gave the claimants no costs immunity) on behalf of some 52 plaintiffs who issued writs against Imperial Tobacco and Gallaher, seeking damages in respect of lung cancer which they claimed was caused by their smoking the defendants' cigarettes in the period before 1972. In essence, it was alleged that the tar content of the cigarettes was higher than it should have been. However, almost by definition, the plaintiffs were time barred. Wright J in his judgment of December 1998, refused to override the time bar. His decision led to the effective collapse of tobacco litigation in this jurisdiction.

In 1997 I was asked to be a member of the Lord Chancellor's working party on multi-party actions. The government, largely due to the political fallout from the benzodiazepine litigation (there had been questions in Parliament once the total bill was made known), saw a need to bring in procedures to regulate group actions with a view to avoiding the pitfalls which it was thought had been exemplified by that case. However, this exercise was overtaken by Lord Woolf's wide ranging review of civil procedure. His proposals for group litigation crystallised in CPR 19.10 and its accompanying Practice Direction which came into force on 2 May 2000. CPR 19.10 introduced the Group Litigation Order (GLO). It set out a procedure for parties to apply for a GLO and laid down the criteria to be adopted by the court in deciding whether to grant it. It is debatable whether CPR 19.10 regime has made any advance upon the position reached by Hirst J in Opren in 1987. Why could not senior judges have been entrusted to work out, on an incremental basis, a fair and practical means of managing these cases that fitted their particular demands?

Failure of publicly funded litigation

The MMR litigation was started by means of a Practice Direction issued by the Lord Chief Justice on 8 July 1999. The litigation wended its way through more than 20 case management conferences. Public funding was withdrawn in the autumn of 2005 but it was not until the summer of 2007, that the group litigation was ended. According to Rachael Mulheron, it cost the public purse some £21m.

It is thus perhaps understandable that the Legal Services Commission has since fought shy of underwriting further group actions of this kind. There has undoubtedly been some successful publicly funded group litigation, but most of it, and particularly the largest and most expensive, has failed (see Table 11 at page 76 of Professor Mulheron's paper).

However, I ask whether, in the absence of public funding, such actions have any real chance of proceeding to a point where, if they do have merit, they can reach a satisfactory conclusion, whether by means of settlement or at trial. In early 2006 I represented a group of ex-coal miners and their families. They maintained that they had had modest, but for them significant, sums of money wrongly deducted from the compensation that they were due to receive, from the government, by those who had handled their claims (the miners' compensation scheme for occupational respiratory disease was set up following the successful group action which resulted in the judgment of Turner J as he then was in Griffiths v British Coal [1998]) . Their application for a GLO underlined some of the difficulties that Professor Mulheron has identified in her paper.

It was believed that many thousands of ex-miners and their families had been similarly affected, but by the time the application was heard in March 2006, there were only about 100 applicants. With each of their claims worth, on average, around £350, the cost/benefit ratio for a group of this size was heavily weighted against proceeding unless it could safely be assumed that, after any group action got the go ahead, a large proportion of the many thousands, thought to be affected, came forward. In the event, the application for the GLO was hotly contested.What should have been a fairly simple procedural application before the Senior Master turned into a major piece of satellite litigation.

Sir Michael Turner who had been in charge of overseeing the miners' compensation scheme for the previous eight years, heard the application instead of the Senior Master to whom, pursuant to the Practice Direction, it had been made. Sir Michael was hostile to the notion that these claims should proceed by way of some form of group arrangement. CPR 19.10 became a veritable casus belli, rather than a vehicle for finding a practical solution to the adjudication of these admittedly small claims. Sir Michael dismissed the application. He deeply criticised the fact the application for a GLO had been brought and the manner in which it had been pursued. The applicants were left unable to challenge the decision on appeal because their after-the-event (ATE) insurers not only refused to cover it but also repudiated liability to indemnify the applicants in respect of the costs liability that they had already incurred.

How, if the cost/benefit ratio is held by the court to stand in the way of the making of a GLO, is access to justice to be achieved in such circumstances? Is the pragmatic answer that, despite the fact that there may be hundreds if not thousands of people similarly affected, there are certain cases that are just not worth the candle? There lies the debate.

Meanwhile, there remain claims that continue to be stifled at birth by an inability to obtain public or other funding, with ATE insurance, to enable them to take on the procedural, let alone the substantive, challenges, that modern group litigation against well-funded defendants now entails.

If the underlying philosophy of those responsible for civil justice is that litigation of this kind is best discouraged then the current regime certainly meets that objective. If, on the other hand, the purpose of the CPR and the new funding regime was to enhance the ability of deserving citizens, whether individually or as a group, to gain access to courts in order to obtain a determination of the merits of their claims, then they have failed.