AS TO THE ADMISSIBILITY OF
Application No. 28639/95
by Joyce G. WOODLEY
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 27 February 1995 by
Joyce G. WOODLEY against the United Kingdom and registered on
21 September 1995 under file No. 28639/95;
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 1927. She is retired and
resides in Hertfordshire. 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 1976 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 an unspecified date, the applicant obtained a limited legal aid
certificate with a view to participating in the Myodil litigation.
On 11 January 1994 the applicant had an MRI. On 20 May 1994 a neuro-
radiologist opined that, although there was clear evidence of
arachnoiditis, this was limited to the surgery site and, as a result, it
was not possible to conclude that Myodil was the most likely cause.
On 26 July 1994 the applicant's solicitors suggested that she should
apply for the discharge of her legal aid certificate.
On 21 November 1994 the neuro-radiologist confirmed that, although
the applicant had severe arachnoiditis and its appearance suggested that
it was probably due to Myodil, the distribution was only at levels of
previous surgery. Therefore, the case lay just outside the essential
criteria by which it had been agreed that the most likely cause could be
attributed to Myodil.
On 31 December 1994 a further medical report was prepared by another
neurologist who identified another possible cause for the applicant's
symptoms, epidural fibrosis.
On 4 January 1995 the applicant's legal aid certificate was
discharged on the ground that it was unreasonable in the circumstances
that she should continue to receive legal aid.
On 17 September 1996 the applicant was advised by a different firm
of solicitors that her case could not be included in a new group action
against Glaxo for which legal aid would be sought. The solicitors
considered that the statutory limitation period would be difficult to
overcome in the applicant's case, since the courts would probably
consider that more than three years had passed since the applicant had
first known that she had been injured as a result of an act or omission
of Glaxo. Although it was within the courts' discretionary power not to
apply the three-year rule, the solicitors considered that there was not
likely that this would occur in the applicant's case, particularly since
there had been Myodil litigation previously.
COMPLAINTS
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 does not invoke any provisions of the Convention.
THE LAW
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 certificate was discharged
on the ground that it was unreasonable in the particular circumstances
that she should continue to receive legal aid.
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 must have been 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 from 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 domestic legal aid authorities appeared to have
always seriously considered the possibility of financing such litigation,
if it had prospects of success. It also notes that the applicant
considered the possibility of joining in a second group action for which
legal aid would be sought.
Although on 17 September 1996 the applicant's solicitors advised her
that there would be problems in overcoming the three-year statutory
limitation period, the courts were never given the opportunity of
examining the issue of whether the applicant's claim had become statute-
barred. As a result, the Commission cannot exclude the possibility that
the applicant herself might bear part of the responsibility, especially
since her previous legal aid certificate had been discharged on 4 January
1995, i.e. more than twenty months before she was first advised that a
problem of statutory limitation arose. In these circumstances, the
Commission considers that the applicant cannot claim that the inevitable
consequence of exclusion from the original 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, the application must be rejected
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) 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