Sandra Bailey and Others v Glaxosmithkline UK Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lambert |
| Judgment Date | 03 July 2020 |
| Neutral Citation | [2020] EWHC 1766 (QB) |
| Court | Queen's Bench Division |
| Date | 03 July 2020 |
| Docket Number | Case No: QB-2007-000013 |
[2020] EWHC 1766 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Lambert
Case No: QB-2007-000013
Mr Niazi Fetto (instructed by Fortitude Law) for the Claimants
Mr Malcolm Sheehan QC, Mr Adam Heppinstall and Mr James Williams (instructed by Addleshaw Goddard) for the Defendant
Hearing dates: 12 and 13 May 2020
Approved Judgment
THE HONOURABLE Mrs Justice Lambert
Introduction
This litigation has a long and chequered history. Most recently, the action was listed for a hearing of the first of the seven generic trial issues set out in Schedule 3 to my Order of 15 February 2019. Two working days before the hearing, and only following the Court's inquiry of the Claimants' legal team as to whether the Claimants were intending to be represented at the hearing, the Court and the Defendant were informed that the Claimants were submitting to judgment being entered in the Defendant's favour. This brought an end to the substantive issues in this long-running litigation.
The issues that occupied the Court in May 2020 and which form the subject matter of this judgment relate to the recovery of the Defendant's costs. Those issues are as follows:
i) first, whether the general rule that the successful party should recover its costs should apply. The unsuccessful Claimants submit that the general rule concerning recovery of costs ( CPR 44.2(2)(a)) should not apply and the appropriate costs order in this case is no order for costs, save for payment of £250,000 representing the Defendant's costs of an application for summary disposal. This argument is advanced on the basis that neither party complied with the duty imposed in CPR 1.1 to further the overriding objective in enabling the Court to deal with the case justly and proportionately by seeking a pre-trial ruling from the Court on the lawfulness of the Claimants' case;
ii) second, if the general rule should apply, the basis of the assessment: the Defendant submits that from 21 June 2018 (that being 28 days following the handing down of the judgment of Andrews J in Colin Gee and others v Depuy International Limited [2018] EWHC 1208 (QB)) the assessment of costs should be on the indemnity basis as from that point (if not earlier) the Claimants ought reasonably to have appreciated that the action was so speculative or weak or thin that it should no longer be pursued; and
iii) third, if the Defendant should recover its costs on either basis, whether there should be a payment on account of costs.
At the hearing before me the Claimants were represented by Mr Niazi Fetto and the Defendant by Mr Malcolm Sheehan QC, Mr Adam Heppinstall and Mr James Williams. I am grateful to all involved for their considerable assistance and to Mr Fetto and Mr Sheehan for their clear and focussed submissions.
Procedural Background
This is an action for damages for personal injury brought by a group of Claimants alleging that the antidepressant drug, Seroxat, a prescription-only antidepressant and one of a class of Selective Serotonin Re-Uptake Inhibitors (SSRIs) is defective within the meaning of the Consumer Protection Act 1987 (“the CPA”).
The full protracted procedural history of the litigation is set out in the judgment of Foskett J of 4 February 2016 [2016] EWHC 178 (QB), in my two judgments of February 2019 [2019] EWHC 337 (QB) and May 2019 [2019] EWHC 1167 (QB) and in the judgment of the Court of Appeal [2019] EWCA Civ 1924. The unexpurgated version of the history is not necessary for present purposes; however given that the parties' conduct of the litigation, set against their respective interpretations of the pleadings and various judgments, lies at the heart of the issues which I must resolve, I need to reference here, at least in outline, something of that history.
The Pleadings
The litigation dates back to December 2007 when Particulars of Claim were served. So far as relevant, the Particulars of Claim alleged that Seroxat was defective (within the meaning of the CPA) by reason of its capacity to cause adverse effects consequent upon discontinuance or withdrawal. It was alleged that those adverse effects were such as to prevent, or make more difficult, the ability of users to discontinue, withdraw from or remain free from taking the drug to an extent greater than other SSRIs. The Claimants also pleaded a secondary case based on a failure to warn of the risks associated with discontinuance. This “warnings case” was however no more than a corollary to the Claimants' primary case and, as such, I need say no more about it.
Before serving its Defence, the Defendant sought clarification of the Claimants' case in a Request for Further Information dated 19 February 2008. One of the questions posed was whether, in contending that Seroxat was defective, it was the Claimants' case that the benefits of Seroxat, as against other drugs of a similar nature for a particular Claimant, were material to be taken into account. To this question, the Claimants responded: “No.”
In its Defence, the Defendant denied that Seroxat had a greater capacity to cause the alleged adverse effects on discontinuance when compared with other SSRIs. However, having been furnished with the clarification of the case it had to meet in the Claimants' Response to the Request for Further Information, the Defence also denied that a defect within the meaning of the CPA in a prescription only medicine could lawfully be established by comparing the incidence and/or severity of a particular adverse reaction associated with that medicine against the incidence and/or severity of that adverse reaction associated with another prescription only medicine. The Defendant pleaded that the only lawful approach to defect within the meaning of the CPA involved a much wider comparison of the relative risk/benefit profiles of Seroxat as against the medicines being compared, both generally and for the particular Claimant in question.
In the Reply, the Claimants joined issue with the Defence generally but did not seek to amend their case to allege defect on the basis of a broader comparison of relative risks/benefits of Seroxat and its comparators more generally.
The Defendant's interpretation of the Particulars of Claim, as clarified in the Response, was that the Claimants' case was limited to the risks of Seroxat relative to comparator SSRIs in respect of symptoms on discontinuation. This limited case attracted the tag: “worst in class case.” The Defendant's consistent (and emphatic) position since service of the Defence has been that the pleadings did not permit the Claimants to run a case based upon a wider examination of the relative risks and benefits of Seroxat compared with other SSRIs either generally or in respect of a specific Claimant (“the risks/benefits case” or “holistic case”) and, further, that only the prohibited holistic approach to the assessment of defect was lawful.
Whether this interpretation of the Claimants' pleaded case was the correct interpretation was the impetus for my two judgments of February 2019 (the second pre-trial review) and May 2019 (following the Opening at trial). The issue was resolved by the Court of Appeal in November 2019 when Hamblen LJ (giving the judgment of the Court) observed that the pleaded case “ was always limited to the “worst in class case.”
Phase 1 of the Litigation:
Following close of pleadings, the litigation progressed in two distinct phases. During the first phase a Group Litigation Order (“the GLO”) was made by Senior Master Whitaker on 29 October 2008. This GLO listed 11 common issues, the first two of which set out the relevant issues concerning defect:
“(a) Does Seroxat have a capacity “to cause adverse effects consequent upon or following discontinuance (withdrawal) such as to prevent or make more difficult the ability of users to discontinue, withdraw from or remain free from taking” Seroxat to a greater extent than all other [SSRIs]?
(b) Should the alleged defect in Seroxat, a prescription only medicine, be established by comparing the incidence and/or severity of adverse reactions associated with that medicine against the incidence and/or severity of adverse reactions associated with another prescription only medicine?”
Following the GLO, the litigation proceeded in a routine way with exchange of witness statements and expert evidence. However, this first phase of the litigation came to an abrupt halt only a few weeks before the trial of the GLO issues which was due to be heard by Mackay J in February 2011 when public funding was withdrawn on a merits basis. This led to the adjournment of the trial and, following the adjournment, the action was effectively stayed. 369 Claimants then discontinued their claims leaving the remaining 124 Claimants to challenge (unsuccessfully) the withdrawal of public funding.
Phase 2 of the Litigation
The second phase of the litigation started in 2015 when the remaining 124 Claimants sought to resurrect the action. By this stage, the Claimants had obtained commercial funding from a third party, Managed Legal Solutions Limited, and a wholly new counsel team had been instructed, led by Ms Jacqueline Perry QC. Until the autumn of 2018, when I took over as nominated trial judge, the litigation was case managed by Foskett J.
Over the course of his three-year tenure case managing the litigation, Foskett J gave 4 reserved judgments dealing with a range of issues. So far as...
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