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