Davies (Joy Rosalie) v Eli Lilly & Company
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE BINGHAM |
| Judgment Date | 22 January 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0122-2 |
| Docket Number | 87/0032 1985 D. No. 1657 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 1987 |
[1987] EWCA Civ J0122-2
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Ralph Gibson
and
Lord Justice Bingham
87/0032
1984 D. No. 1896
1985 D. No. 1657
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE HIRST)
Royal Courts of Justice.
MR. D. SULLIVAN, Q.C. and MR. C. CARLING (instructed by Messrs. Owen White, Agents for Messrs. Goldberg Blackburn & Howard, Manchester) appeared on behalf of the (Plaintiffs) Appellants.
MR. M. SPENCER (instructed by Messrs. Davies Arnold & Cooper) appeared on behalf of the (First to Fifth Defendants) Respondents.
MR. ANDREW COLLINS, Q.C. and MR. J. FENWICK (instructed by the Treasury Solicitor) appeared on behalf of the (Sixth and Seventh Defendants) Respondents.
Over 1,000 plaintiffs have brought individual actions claiming damages for personal injury consequent upon their treatment with the drug Benoxaprofen, marketed in the United Kingdom under the name "Opren". The first five defendants are in effect the United States manufacturers of the drug and their United Kingdom subsidiaries (to whom I will refer as the "Llly defendants"). The sixth and seventh defendants are the Committee on the Safety of Medicines and the Department of Health and Social Security as the licensing authority under the Medicines Act 1968. The cause of action alleged is negligence, but for present purposes it is unnecessary to be more specific.
Manifestly there will be some issues which will be common to all these actions, some which are common to many of them and some which are peculiar to particular actions. In these circumstances, it was clearly in the interests of all concerned that some of the actions should be treated as test cases and that a particular judge should be appointed to assist the parties, by making directions or otherwise, so to arrange this litigation that the minimum of delay and expense was involved. Mr. Justice Hirst has been so appointed and under his guidance certain interlocutory "lead actions" have emerged. One such is the claim by the plaintiff Joy Davies.
The particular order which is the subject of this appeal relates to inspection of documents disclosed by the defendants. It raises an issue which is common to all the actions and our decision on this appeal will directly or indirectly affect them all. The matter is therefore of some importance.
With great good sense, the plaintiffs and their solicitors
have co-ordinated their activities through the medium of six "lead solicitors", the chairman or principal co-ordinator being Mr. Pannone who is a partner in the firm of Goldberg, Blackburn & Howard of 123 Deansgate, Manchester, chairman of the Law Society's Contentious Business Committee and has unrivalled experience in the field of multiple claims for personal injuries.
At an early stage, some two years ago, it appeared to the plaintiffs' solicitors that the problem of assembling and organising the documentation in this action and co-ordinating the expert advice and evidence which were required would be uniquely difficult for two reasons. First, the subject-matter is highly technical and involves medical and scientific specialities of many different kinds. Second, the extent of the documentation would demand that it be computerised if particular documents were ever to be available as and when required. To indicate the extent of the problem, it is perhaps only necessary to record that discovery in the Thalidomide case involved the disclosure of some 30,000 documents, which was itself a record, but in the present litigation it is thought that the documents will number some 1.2 million, many of which will consist of several pages.
Whilst the essential tasks facing any solicitor preparing any action for trial are the same, problems of scale of this order call for a special approach. In these circumstances, the plaintiffs' solicitors considered that they needed the assistance of someone who was capable of (a) acting as a go-between, co-ordinator and interpreter in their dealings with their expert medical and scientific advisers, (b) undertaking research designed to identify the relevant experts and to uncover supporting evidence in scientific publications, (c) analyse a mass of evidence given in similar United States proceedings, and (d) computerise all this material together with the material which would in due course become available on discovery. It was not to be expected that they would find anyone with these qualifications in their own offices and indeed I am surprised that they found anyone who was not employed in the pharmaceutical industry or otherwise employed in circumstances in which he would be quite unable to devote perhaps three or four years of his life to this project on a more or less wholetime basis. However, they did find such a man, a Mr. Medawar. He is a United Kingdom subject whose parents were scientists and scientific writers, his father being a Nobel Prize winner. He has devoted his life to medical and scientific journalism and, whilst not claiming to be an expert in any particular field of medicine or science, has acquired a sufficient knowledge of a wide range of medical and scientific specialities to be able to understand what the experts are saying and to interpret it for the benefit of those who are, in this context, laymen. In addition, he is familiar with the art or science of computerisation.
With the approval of the legal aid authorities, the plaintiffs' solicitors engaged Mr. Medawar and he has been assisting the plaintiffs and their solicitors for the greater part of each working week since December 1984. In the course of this work he has undertaken research and attended many conferences with experts and by now must have an unique
knowledge of the case which the plaintiffs seek to make. What does not seem to have occurred to any of the solicitors concerned was that the Lilly defendants would object to him seeing the documents to be disclosed by them in the actions, but that is what has happened.
On the 2nd June, 1986 a consent order was made for discovery, inspection to follow. On the 1st July the plaintiffs asked for inspection in the following week and the Lilly defendants enquired who would be conducting the inspection. This inquiry was perhaps unusual, but was fully justified because the documents were held at the Lilly defendants' Basingstoke Research Establishment which, like similar establishments, has in recent years become a potential target for those concerned with animal rights and other more or less violent protest groups. The plaintiffs' solicitors promptly supplied a list including the name of Mr. Medawar. Initially the Lilly defendants objected solely on the ground that he was not an employee of the solicitors, but they then did some research and discovered that, in his capacity as a medical and scientific journalist, he had published matter highly critical of the pharmaceutical industry in general and the Lilly defendants in particular.
Let me emphasise that the plaintiffs' right to discovery of all relevant documents, saving all just exceptions, is not in issue. This right is peculiar to the common law jurisdictions. In plain language, litigation in this country is conducted "cards face up on the table". Some people from other lands regard this as incomprehensible. "Why," they ask, "should I be expected to provide my opponent with the
means of defeating me?" The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object. But that said, there have to be safeguards. The party who is reguired to place all or most of his cards face up on the table is entitled to say, "Some of these cards are highly confidential. You may see them for the purpose of this litigation but, unless their contents are disclosed to all the world as part of the evidence given in open court, that contents must be used for no other purpose." This is only fair, because, as has been well said, discovery of documents involves a serious invasion of privacy which can be justified only in so far as it is absolutely necessary for the achievement of justice between the parties.
Nor is it now in issue that if the plaintiffs need someone of Mr. Medawar's expertise to assist them in the conduct of this litigation, it is for them, and not for the defendants, to choose who that person should be. What is in issue is whether the plaintiffs have such a need at this stage when the case is being prepared for trial, and whether the choice of Mr. Medawar will, or may, deprive the defendants of essential protection from improper use or disclosure of the contents of documents disclosed by them to the plaintiffs. It is for the plaintiffs to satisfy the court of the need for a scientific co-ordinator with access to disclosed documents and it is for the defendants to satisfy the court that the choice of Mr. Medawar is not one which they should be required to accept.
I must digress for a moment to explain the position of the Attorney General on behalf of the Committee on Safety of Medicines and of the...
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