ALFORD AND 57 OTHERS v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 26475/95

                      by Geraldine ALFORD and 57 others

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mr.   R. NICOLINI

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 4 October 1994 by

Geraldine ALFORD and 57 others against the United Kingdom and

registered on 9 February 1995 under file No. 26475/95;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicants are all British citizens, a complete list is

annexed to this report. They are represented before the Commission by

Freeth Cartwright Hunt Dickins, a firm of solicitors practising in

Nottingham.

     The facts of the case, as submitted by the applicants'

representative, may be summarised as follows.

A.   The particular circumstances of the case

     Between 1988 and 1992 a large number of proceedings were issued

by individual plaintiffs who alleged that death or personal injury had

resulted from the taking of one or more Benzodiazepine drugs, which it

was alleged were addictive, induced dependency and caused physical,

psychological, social and intellectual impairment, mental distress and

potential drug withdrawal syndrome. Some plaintiffs made claims against

the manufacturers of the drugs alone and others claimed against both

the manufacturers and those who had prescribed the drugs ("the

prescribers"). Some of those who had prescribed the drugs were

consultant psychiatrists employed by Health Authorities and others were

general practitioners. It appears from the conduct of the case, that

the claims against the prescribers were brought in the alternative; the

plaintiffs only intended to pursue the claims against the prescribers

if the claims against the manufacturers failed.

     The applicants were amongst the group of plaintiffs that sued

both the manufacturers and the prescribers of the drugs.

     On 6 December 1990 a Practice Note was issued by the then Lord

Chief Justice, Lord Lane, that the progress of all of the

"Benzodiazepine" claims should be monitored by a single Judge,

Mr Justice Ian Kennedy (Kennedy J).

     Kennedy J subsequently treated the claims concerning the

Benzodiazepine drugs as a multi-party action.

     Although the cases were administered together, each claim was

issued separately and involved separate and individual claims for

damages. The plaintiffs in these domestic proceedings were not "joint

plaintiffs" but were a group of individuals whose claims were

administered together.

      By October 1992 there were approximately 5,000 sets of

proceedings in the Benzodiazepine litigation. In approximately 3.4% of

these actions, the prescribers of the drug were joined with the

manufacturer as co-defendants. In 19 cases it was the consultant

psychiatrist employed by the relevant Health authority who was the

prescriber, and for whom the Health Authority was vicariously liable;

in approximately 150 cases the prescriber was the general practitioner;

there were also a small number of cases where the plaintiff claimed

against both the Health Authority and general practitioner, in addition

to the manufacturer.

     On 23 October 1992 Kennedy J struck out the claims against the

Health Authority prescribers. The strike out was made pursuant to Order

18 Rule 19 of the Rules of the Supreme Court 1981 and under the

inherent jurisdiction of the court, on the following grounds:

     "that it would be unjust and an abuse of the process of the

     court for the Health Authorities to be required to remain

     in this litigation because:

     i.    They cannot properly defend the claims against them

           without being present at the generic trial;

     ii.   The claims made against them could not reasonably have

           been brought if the primary claims were not being

           advanced;

     iii.  The cost to the Health Authorities of taking as

           limited a part in the generic trial as they can fairly

           take would bear no sensible relationship to any

           benefit that the Plaintiffs might hope to obtain from

           their inclusion."

     On 15 March 1993 Kennedy J struck out the claims against the

general practitioner prescribers, pursuant to the same powers and

relying on the same reasons, but adding two additional reasons. The

first additional reason was that if the claims against the general

practitioners were stood over for possibly another 4 years (until after

the trial against the manufacturers), the treatments by the prescribers

would be 15 or more years in the past and many prescribers would be

either dead or disabled in their recollection. The second additional

reason resulted from the fact that the vast majority of the plaintiffs

were legally aided. Since the claims against the prescribers were only

going to be pursued if the action against the manufacturer failed, any

damages that legally aided plaintiffs might recover against the

prescribers, would be consumed by the legal aid charges for the costs

of the unsuccessful action against the manufacturers.

     The applicants' claims against the manufacturers of the drugs

remained in existence, despite the striking out of the claims against

the prescribers.

     The plaintiffs who had had claims against the prescribers,

appealed to the Court of Appeal against both striking out orders. The

applicants were among the group of plaintiffs who appealed. On

26 November 1993 the Court of Appeal dismissed the appeal. The Court

of Appeal stated inter alia that:

     "in the absence of any plea by the manufacturers that any

     negligent prescribing constituted a novus actus

     interveniens, it is clear that if liability is established

     against the manufacturers, they will be liable for all the

     damages that can be proved to have been caused, including

     any that is consequent upon the prescribers' prescription.

     On the other hand, it is common ground that if the

     Plaintiffs succeed only against the prescribers, the

     quantum of damages recoverable will be very modest."

     The Court of Appeal also stated that in most cases it would be

inappropriate to enter into a cost benefit analysis of the plaintiffs'

prospects of receiving a certain sum and the defendants' cost of

defending the action. However, in this case the prescriber defendants

would be put to astronomical expense in defending the contingent claims

and having their interests represented at the trial against the

manufacturers, which would involve issues relevant to the claims

against the prescribers, such as the side effects and addictive nature

of the drugs and the state of medical knowledge about the drugs at the

relevant time. In circumstances of such an extreme disparity, the

comparison of the plaintiffs' potential gain and defendants' costs of

litigation, was a relevant factor. The Court of Appeal was also of the

view that whilst there were significant advantages to group actions,

enabling plaintiffs to join together to bring a case which individually

would never be possible, group actions must not be conducted in a way

to do injustice to other parties. There would be injustice to the

prescriber defendants in this case, who would be locked into extremely

expensive litigation on a very large scale, despite being only

contingent co-defendants in a small number of cases.

     At the hearing on 26 November 1993 leave to appeal to the House

of Lords was requested. The Court of Appeal rejected that application,

saying that such an application would have to be made to the House of

Lords itself.

     Subsequently the House of Lords was petitioned for leave to

appeal against the Order of the Court of Appeal. On 27 June 1994 the

House of Lords rejected this petition.

B.   Relevant domestic law

     There is no specific body of rules of the Supreme Court providing

for special procedures in Multi-Party Actions.

     Order 18 Rule 19 of the Rules of the Supreme Court 1981 states:

     "19.  (1)   The court may at any stage of the proceedings

     order to be struck out or amended any pleading or the

     indorsement of any writ in the action or anything in any

     pleading or in the indorsement, on the ground that -

     (a)   it discloses no reasonable cause of action or defence,

           as the case may be;

     (b)   it is scandalous, frivolous or vexatious;or

     (c)   it may prejudice, embarrass or delay the fair trial of

           the action;or

     (d)   it is otherwise an abuse of the process of the Court;

     and may order the action to be stayed or dismissed or

     judgment to be entered accordingly, as the case may be."

     In addition to the powers under Order 18 Rule 19 the court also

has an inherent jurisdiction to dismiss actions which it holds to be

frivolous or vexatious or an abuse of process.

COMPLAINTS

     The applicants complain that the striking out of their claims

against the prescribers of the Benzodiazepine drugs, deprived them from

receiving a fair and public hearing by an impartial tribunal, and as

such constituted a breach of Article 6 of the Convention.

THE LAW

     The applicants complain that as a result of the striking out of

their claims against the prescribers of Benzodiazepine drugs they were

deprived from access to court in violation of Article 6 para. 1

(Art. 6-1).

     Article 6 para. 1 (Art. 6-1) of the Convention provides:

     "1.   In the determination of his civil rights and

     obligations or of any criminal charge against him, everyone

     is entitled to a fair and public hearing within a

     reasonable time by an independent and impartial tribunal

     established by law. Judgment shall be pronounced publicly

     but the press and public may be excluded from all or part

     of the trial in the interest of morals, public order or

     national security in a democratic society, where the

     interests of juveniles or the protection of the private

     life of the parties so require, or to the extent strictly

     necessary in the opinion of the court in special

     circumstances where publicity would prejudice the interests

     of justice."

     The Commission accepts that this case concerns civil rights and

obligations within the meaning of Article 6 para. 1 (Art. 6-1) (see

Eur. Court HR, H v. France judgment of 28 November 1989, Series A no.

162, p. 20).

     The Commission recalls that Article 6 para. 1 (Art. 6-1) secures

to everyone the right to have any claim relating to his civil rights

and obligations brought before a court or tribunal (see Eur. Court HR,

Golder v. United Kingdom judgment of 21 February 1975, Series A no. 18,

p. 18, para. 36 and Ashingdane v. United Kingdom judgment of 28 May

1985, Series A no. 93, p. 24, para. 55). However the Commission notes

that the right of access to a court is not absolute (see Eur. Court HR,

Golder v. United Kingdom judgment of 21 February 1975, Series A no. 18,

p. 18, para. 38).

     Limitations on the right of access to court are permitted, due

to the fact that the right of access:

     "by its very nature calls for regulation by the State,

     regulation which may vary in time and in place according to

     the needs and resources of the community and of

     individuals." (see above mentioned Golder judgment, p. 19,

     para. 38 quoting the "Belgian Linguistic" judgment of

     23 July 1968, Series A no. 6, p. 32, para. 5).

     The Commission recalls that the Contracting States enjoy a margin

of appreciation in laying down regulations restricting access to court.

     However, notwithstanding the national authorities' margin of

appreciation, any restriction on access to courts must not be such that

the very essence of the right is impaired. The restriction must have

a legitimate aim and there must be a reasonable relationship of

proportionality between the means employed and the aim sought to be

achieved (see above-mentioned Ashingdane v. United Kingdom judgment of

28 May 1985, Series A no. 93, para. 59).

     The Commission notes that in the present case the applicants did

initially have access to bring their claim to the High Court, and

proceedings were issued against the prescribers. However under domestic

procedure the applicants' claims were struck out by the High Court.

This strike out took place after there had been an oral hearing at

which the applicants were represented by counsel; further, the

applicants were able to and did appeal against the decision. There was

an oral hearing before the Court of Appeal, at which the applicants

were again represented by counsel. The Court of Appeal upheld the

ruling of the High Court that the claims against the prescribers be

struck out. Thus to this extent the applicants did have access to

court.

     With regard to the striking out of the applicants' claim, the

Commission notes that the continuance of the claim against the

prescribers would have locked the prescribers into extremely costly

litigation, quite out of proportion to the likely damages that could

ever be recovered against them by the applicants. The Commission

further notes that the applicants were involved in multi-party

litigation, which gave them significant advantages by working together

and pooling resources against the principal defendant (the

manufacturer), and that the claim against the prescribers was at most

a contingent claim of limited value, to be pursued only, if at all

(given the limited value of the claim and the realities of the legal

aid position), if the principal claim against the manufacturers failed.

Despite the striking out of their claims against the prescribers, the

applicants' claims against the manufacturers in respect of the same

damages remained in existence. Thus the striking out did not deny the

applicants from pursuing damages but merely restricted them to suing

only the manufacturers of the drugs, whom the applicants themselves

considered as the principal defendants. In these circumstances the

Commission concludes that the decision by the national authorities to

strike out the applicants' claims against the prescribers, largely on

the basis of economic expediency, was a legitimate restriction which

did not impair the essence of the right to access to court.

     In view of all the circumstances, the striking out of the

applicants claims does not disclose any appearance of the impairment

of the very essence of the applicants' "right to court" or a

transgression of the principle of proportionality.

     It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber

                                  A N N E X

      Applicant             Nationality      Date of birth    Domicile

1.    ALFORD Geraldine      British          not given        Hillingdon

2.    ASHDOWN Michael       British          01.12.1936       Ringmer

3.    BRAMHALL Donald       British          03.06.1921       St. Helens

4.    CASSIDY Chloe D.      British          01.06.1945       Cornwall

5.    CASTANOS Mary E.      British          19.05.1928       Littlehampton

6.    CLARENCE William      British          18.12.1936       Prestwich

7.    CLARK Bernard R.      British          19.06.1928       Kingswood

8.    COCKSHOTT Lilian      British          31.12.1930       Middleton

9.    DEMPSEY Elsie         British          16.11.1940       Wythenshawe

10.   DOUBTFIRE Elsie E.    British          21.08.1942       Tyne & Wear

11.   ELLIS James G.        British          05.11.1947       Wigan

12.   FRAIS Betty P.        British          19.06.1933       Manchester

13.   FRENCH James          British          26.09.1946       London

14.   GEU Margaret          British          09.01.1925       Liverpool

15.   GORMAN Francis        British          26.08.1938       Reading

16.   GRAY Glynis J.        British          08.08.1948       Enfield

17.   GRIFFITHS Ann V.      British          10.08.1938       Cheetham

18.   HAMBLETT Mark         British          02.08.1957       Birmingham

19.   GRANT-HANLON Terence  British          12.07.1951       Liverpool

20.   HARRISON Peter G.     British          09.12.1954       Cobham

21.   HOLMES Christine G.   British          30.12.1949       Grasmoor

22.   HOLT Kathleen         British          01.03.1941       Birmingham

23.   HUGHES Ann J.         British          27.08.1939       Huddersfield

24.   HUGHES Robert A.      British          18.10.1947       Clwyd

25.   INGRAM Delcia R.      British          08.08.1932       Estover

26.   KAY Jennifer E.       British          24.02.1944       Rochdale

27.   KENNEDY Peter E.      British          27.06.1947       Rotherham

28.   LAIDLER David         British          11.08.1952       Tyne & Wear

29.   TAMS(LOWE)Barbara A.  British          20.08.1952       Stoke-on-Trent

30.   MACGUGAN Duncan       British          27.10.1933       Cronton

31.   McCOURT June          British          15.02.1944       Washington

32.   MEEKS John A.         British          29.09.1938       Milton Keynes

33.   MERRIE Dudley         British          25.02.1941       Huyton

34.   MORGAN Gerwyn         British          18.02.1945       Treharris

35.   NICHOLLS Jean         British          04.08.1944       Rochdale

36.   NICHOLSON Irene M.    British          14.08.1938       Northwood

37.   OATES Edith           British          18.11.1942       Carlisle

38.   PEARCE Phyllis M.     British          07.11.1948       Birmingham

39.   REED George           British          04.05.1924       Tyne & Wear

40.   RICHARDSON James A.   British          01.10.1939       Hanley

41.   ROGER'S Lillian G.    British          04.03.1928       Chatham

42.   ROUNDHILL Betty       British          25.02.1928       Hull

43.   SCHOLEG John D.       British          13.06.1944       Batley

44.   SCOTT Getrude E.      British          01.07.1918       Cliftonville

45.   SCOTT Kathleen        British          14.11.1947       Darwen

46.   SERRET Bernadette M.  British          05.12.1947       London

47.   SERRET Sylvia T.      British          22.09.1919       Stratford

48.   SHAW Karen R.         British          08.04.1942       Chadderton

49.   THOMPSON John J.      British          03.03.1931       Southport

50.   TRUMAN Lorna          British          16.06.1950       Bramcote

51.   TWIGG Kathlene        British          29.08.1940       Whiston

52.   WALKER Rita C.        British          27.09.1952       Hull

53.   WARCHALOWSKI Witold   British          20.11.1920       London

54.   WATSON Brenda         British          18.05.1933       Sutton on Sea

55.   WELLS Valerie W.      British          20.06.1939       Gillingham

56.   WHARMBY Peter B.      British          27.06.1951       Oldham

57.   WILBOURNE Jean        British          25.04.1925       Grassmoor

58.   WILLIAMS Wesley C.    British          07.10.1947       Derby

 

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