AS TO THE ADMISSIBILITY OF
Application No. 28156/95
by Christine SEARLE
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 23 February 1995
by Christine SEARLE against the United Kingdom and registered on
8 August 1995 under file No. 28156/95;
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 applicant is a British national born in 1948. She is a
housewife and a student and resides in Hampshire. She claims to be
suffering from a form of arachnoiditis, a disease causing severe pain
in the back and legs, as a result of a myelogram she underwent in
April 1971 in which Myodil, a spinal dye, was used.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. The Myodil litigation in general
When the potential link between Myodil and arachnoiditis was
realised, civil proceedings for negligence were instituted against
Glaxo Laboratories Ltd (hereinafter Glaxo), the manufacturers of
Myodil, and the Health Authorities of England and Wales.
On 19 December 1991 the High Court of Justice gave permission to
the plaintiffs in the action against the Health Authorities to
discontinue the proceedings before 15 January 1992. The court decided
that it would not make any order as to costs for plaintiffs who
discontinued before that date. It also ordered the Health Authorities
to continue to supply copies of their medical records to the plaintiffs
or potential plaintiffs in the proceedings against Glaxo.
The proceedings against Glaxo were organised as follows. There
was the generic claim concerning the liability of Glaxo for damages
caused through arachnoiditis being brought about by Myodil myelography.
All plaintiffs were parties to this claim, which was conducted as a
group action by a Steering Committee designated by the Group of
Solicitors involved in Myodil litigation. In addition to the generic
claim, there was a series of individual claims as to whether each
plaintiff was suffering from Myodil induced arachnoiditis. These were
handled by each plaintiff's solicitors.
The statement of claim in the generic action and Glaxo's defence
thereto were served before the end of June 1992. By the same time, the
consultants of the Steering Committee of the Myodil Solicitors Group
had met with the consultants of Glaxo and had agreed on "the essential
diagnostic criteria for Myodil-induced symptomatic arachnoiditis"
(hereinafter "the essential criteria").
It appears that the High Court judge appointed to hear the
litigation issued an order approving the essential criteria. Only the
persons who satisfied the essential criteria were admitted to the
litigation and were allowed to lodge individual claims. As agreed
between the Steering Committee and Glaxo, each potential plaintiff
would be examined by a neurologist who would provide a clinician's
report. Where appropriate the neurologist would refer the potential
plaintiff to a radiologist or neuro-radiologist to undergo a Magnetic
Resonance Imaging (hereinafter MRI) scan.
The essential criteria were clinical and radiological criteria.
The patient should have been injected with Myodil. There should be
radiological evidence of arachnoiditis not just at the site of the
initial pathology or surgery, but also at other levels. There should
have been no other exclusive cause for arachnoiditis. Finally, the
symptoms and clinical findings should match the anatomical distribution
of the arachnoiditis which had been demonstrated radiologically.
A number of potential litigants who had been granted legal aid
limited to all steps up to but excluding the issue of proceedings and
who were found not to satisfy the essential criteria agreed to have
their legal aid certificates "discharged". According to the rules
governing the granting of legal aid by the Legal Aid Board, persons who
have their legal aid certificate "discharged", are covered by legal aid
up to the date of the notice of "discharge". A "discharge" of a legal
aid certificate is to be distinguished from its "revocation". If a
legal aid certificate is "revoked", it is as if the person concerned
never had legal aid. As a result, the person concerned has to bear the
full cost of the work done under the "revoked" certificate.
On 23 November 1992 a directions hearing took place at the High
Court. The judge instructed that all individual claims had to be
notified to Glaxo by 1 February 1993 and that the court proceedings had
to be served by 1 March 1994. The general claim was to be heard in
October 1994.
The deadline for serving the individual claims was subsequently
extended to 1 September 1994 and the hearing of the generic action was
adjourned until 26 April 1995. On 21 December 1994 the court ordered
a further adjournment until October 1995 in the generic action. In
January 1995 the court authorised the belated serving of additional
individual claims. The Steering Committee promised that it would seek
no further extension in respect of individual cases.
In March 1995 Glaxo and the Steering Committee exchanged expert
evidence. On 5 July 1995 Glaxo made an offer to settle the action which
the Steering Committee advised the plaintiffs to accept. On
31 July 1995 the judge approved the settlement terms.
It is not clear whether a second action was ever brought by
persons who were found not to fulfil the essential criteria.
B. Particular circumstances of the applicant's case
On a date which has not been specified, the applicant was issued
with a limited legal aid certificate.
On 14 February 1994 she was examined by a neurologist and on
1 March 1994 she had an MRI. On 15 March 1994 the neurologist informed
the applicant's solicitors that the MRI showed evidence of a degree of
arachnoiditis which appeared to be confined to the level of surgery.
On 23 March 1994 the applicant's solicitors informed her that,
in view of the MRI findings, it would be difficult to proceed within
the present Myodil group as she was unable to satisfy the essential
criteria. However, the solicitors had decided to seek counsel's advice
on whether the opinion of a second neurologist was necessary and on
whether the applicant could proceed within the second group of
claimants who did not satisfy the "strict" essential criteria but who
nevertheless exhibited some signs of Myodil induced arachnoiditis. On
24 May 1994 counsel advised that the applicant should be referred for
a second medical opinion. On 16 July 1994 a second neurologist advised
that the case was probably not worth taking forward.
On 17 August 1994 the first neurologist advised the applicant's
solicitors that, in the light of a recent study, certain assumptions
about Myodil induced arachnoiditis (in particular, that the Myodil
induced arachnoiditis must be at sites other than the operation site)
might be no longer valid.
On 18 August 1994 the applicant's solicitors advised the
applicant that the matter could not be pursued further and that they
would inform the Legal Aid Board of the difficulties in her case.
On 8 September 1994 the applicant was informed of the conclusions
of a recent study to the effect that, although arachnoiditis occurred
following surgery, the chance of it happening was well under 10% if the
patient had not had Myodil. In contrast, if the applicant had had
Myodil, the chance of post-operative arachnoiditis was over 50% in a
"highly selected group of patients" investigated.
On 20 September 1994 the applicant's legal aid certificate was
discharged with her consent.
COMPLAINTS
1. The applicant complains that she was not allowed to take part in
the Myodil litigation. She argues that the essential criteria were
unduly restrictive. She invokes Article 13 of the Convention.
2. The applicant also complains under Article 10 of the Convention
that for a number of years she did not have access to information
concerning the potential effects of Myodil.
THE LAW
1. The applicant complains that she was not allowed to take part in
the Myodil litigation.
The Commission considers that the applicant's complaint should
be examined under Article 6 para. 1 (Art. 6-1) of the Convention which
provides that "in the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by a tribunal
established by law." In accordance with the Court's case-law, this
provision guarantees the right of access to a court, i.e. the right to
have a claim relating to civil rights and obligations brought before
a court or tribunal (Eur. Court HR, Golder v. United Kingdom judgment
of 21 February 1975, Series A no. 18, p. 18, para. 36). Moreover, there
can be no doubt that the applicant had a claim for compensation against
Glaxo which was of a civil nature.
The Commission notes that the main thrust of the applicant's
complaints is that the essential criteria were unduly restrictive and
it recalls that these criteria were agreed by the Steering Committee
of the Myodil Solicitors Group, which was conducting the group action,
and the defendants, Glaxo. However, it appears that the essential
criteria were also approved by a court order. Moreover, it is clear
that they were used by the domestic legal aid authorities to determine
the applicant's prospects of success if she were to join in the group
action. As a result, the responsibility of the United Kingdom under the
Convention could be engaged.
However, the Commission considers that Article 6 para. 1
(Art. 6-1) does not preclude the authorities from deciding various
issues affecting participation in a group action on the basis of
criteria established with the agreement of the defendant, provided that
the criteria are reasonable and that potential litigants who do not
fall within the criteria preserve the right to sue independently. The
applicant has not established that the criteria agreed between the
Steering Committee and Glaxo were unreasonable. Moreover, it clearly
emerges from the applicant's submissions that persons who were excluded
from the group action did not automatically lose the possibility of
suing Glaxo independently.
The Commission accepts that the applicant's financial situation
was such that, on the basis of all available indications, she could not
contemplate instituting proceedings Glaxo without legal aid. However,
the applicant was issued with a legal aid certificate. This was limited
to all steps up to but excluding the issue of proceedings including
obtaining counsel's opinion. Thus, its aim was to enable the applicant
to assess her prospects of joining in the group action always with
reference to the essential criteria. The Commission notes that this
certificate was discharged with the applicant's consent and, as a
result, an issue could arise as to whether the applicant can still
claim to be a victim of a violation of her right of access to a court,
within the meaning of Article 25 (Art. 25) of the Convention. However,
the Commission does not consider it necessary to determine the issue
because, in any event, the complaint is manifestly ill-founded
The Commission recalls in this connection that Article 6
(Art. 6) does not always guarantee legal aid in civil cases. The means
by which a State ensures effective access to civil courts is within its
margin of appreciation (Eur. Court HR, Airey v. Ireland judgment of
9 October 1979, Series A no. 32, p. 15, para. 26). Moreover, even where
legal aid may be available for certain types of civil action, it is
reasonable to impose conditions on its availability involving, inter
alia, the financial situation of the litigant or the prospects of
success of the proceedings (No. 8158/78, Dec. 10.7.80, D.R. 21, p. 95;
No. 10871/84, Dec. 10.7.86, D.R. 48, p. 154; No. 10594/83,
Dec. 14.7.87, D.R. 52, p. 158).
The Commission considers that the discharge of the applicant's
legal aid certificate was obviously related to a finding that she did
not fulfil the essential criteria for participation in the group
action. This finding was reached after obtaining expert medical and
legal opinion on the matter and both the medical and legal opinions
were covered by the applicant's legal aid certificate. In these
circumstances, it cannot be argued that the applicant's prospects of
success in the group proceedings were not properly weighed and that the
conditions imposed on availability of legal aid in this connection were
unreasonable.
A final issue which remains to be examined is whether the
applicant, once excluded form the group action, retained a realistic
possibility of instituting proceedings against Glaxo. The Commission
is, of course, not unaware of the financial implications of suing
Glaxo. However, the Commission notes that the applicant never applied
for legal aid in order to institute independent proceedings against
Glaxo. Moreover, there is no indication that the domestic legal aid
authorities would not consider the possibility of financing such
litigation, if it had prospects of success. As a result, the Commission
considers that the applicant cannot claim that the inevitable
consequence of exclusion from the group proceedings was inability to
sue.
It follows that no appearance of a violation of the applicant's
right of access to a court under Article 6 para. 1 (Art. 6-1) of the
Convention is disclosed. As a result, this part of the application must
be rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains under Article 10 (Art. 10) of the
Convention that for a number of years she did not have access to
information concerning the potential effects of Myodil.
The Commission considers that, insofar as this complaint may
concern the failure of the manufactures of Myodil to disclose to the
public information which may have been available to them, it is
incompatible ratione personae with the provisions of the Convention,
since the actions of the manufactures cannot engage the responsibility
of the United Kingdom under the Convention.
It follows that this part of the application must be rejected as
incompatible with the Convention in accordance with Article 27 para. 2
(Art. 27-2) thereof.
3. Insofar as the complaint may concern the failure of the competent
Health Authority to communicate such information and assuming that an
issue under Article 10 (Art. 10) of the Convention could arise, the
Commission considers that the applicant has not exhausted domestic
remedies in accordance with Article 26 (Art. 26) of the Convention. The
Commission recalls, in this connection, that the proceedings against
the Health Authorities in all Myodil cases were discontinued before 15
January 1992.
It follows that this part of the application must be rejected in
accordance with Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy