Sandra Bailey & Others v Glaxosmithkline (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lambert |
| Judgment Date | 14 February 2019 |
| Neutral Citation | [2019] EWHC 337 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HX07X04076 |
| Date | 14 February 2019 |
[2019] EWHC 337 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lambert
Case No: HX07X04076
Jacqueline Perry QC, Michael Kent QC, Niazi Fetto, Harry Lambert and Juliet Stevens (instructed by Fortitude Law, Solicitors) for the Claimants
Charles Gibson QC, Malcolm Sheehan QC, Adam Heppinstall and James Williams (instructed by Addleshaw Goddard, LLP) for the Defendant
Hearing dates: 13 and 14 February 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an action for damages for personal injury, brought by a number of Claimants, in which it is alleged that Seroxat (the UK brand name for Paroxetine, a prescription only antidepressant and anxiolytic) is defective within the meaning of the Consumer Protection Act 1987 (“the CPA”).
The action is listed for trial, commencing on 29 April 2019, with a time estimate of ten weeks. It has a long history. It is not necessary for me to detail all of the twists and turns of the litigation but I note that its impetus appears to date back as far as 2002 when, following a Panorama programme concerning Seroxat, a large number of users came forward claiming to have suffered serious consequences from taking the drug.
The first important milestone in the litigation is the Group Litigation Order (“the GLO”) which was made by Senior Master Whittaker in October 2008. The GLO identified a list of 11 common, or related, issues of fact or law; this was preceded by Particulars of Claim in the case of Tracy Bishop, a lead case, which were served in December 2007. A Request for Further Information of the Particulars of Claim was the subject of a response by the Claimant in May 2008 and the Defence was then served on 15 September 2008. There followed a Reply which was initially served in May 2009 and then re-served in an amended form in April 2010. There were further pleadings including a Notice to Admit facts. The action proceeded along the usual lines with expert evidence being served and joint meetings taking place during 2009 and 2010. The litigation then came to a halt in 2010, relatively shortly before trial which had been listed to take place before Mackay J in February 2011, as public funding was withdrawn. Following this, a large number of the Claimant cohort discontinued their action leaving claims on behalf of 124 Claimants in hiatus.
The group litigation was restored in early to mid-2015 and the matter came before Foskett J in October 2015 for case management when the Defendant argued that the proceedings should come to a permanent halt. There were then further hearings before Foskett J at which he dealt with a range of matters. Of particular relevance to the issues for my determination today are his rulings of February 2016 and March 2017. The first pre-trial review before me took place in November 2018.
The Issue for my determination:
The issue before me concerns the scope of the trial. In particular, the scope of the Claimants' case on defect. There is no dispute that the Claimants' case on defect includes the assertion that Seroxat has a capacity to cause adverse effects on discontinuance such as to either prevent or make it more difficult for the user to discontinue or remain free from taking the drug to a greater extent than all other drugs in a similar class (of Seratonin Re-Uptake Inhibitors). Nor is it in dispute that the Claimants' case includes the assertion that a warning of that greater capacity to produce those adverse effects should have been included in the product literature. Both of those issues, it is agreed, are pleaded in the Particulars of Claim, are reflected in the GLO and were agreed by Foskett J to reflect accurately the Claimants' case.
However, in November 2018 at the PTR before me, Mr Kent QC who leads for the Claimant on this issue, flagged up that those two issues did not accurately reflect the extent of the Claimants' case on defect. To avoid the possibility of wasting time at trial determining the scope I ordered that the parties produce a list of questions/issues which they each considered should be decided at trial. The exercise has indeed demonstrated a difference between the parties, hence this ruling.
The Claimants' case in a nutshell is that their case on defect is not restricted to the way in which it is stated in paragraphs (a) and (d) of the GLO. The case is wider and is not solely dependent upon the Claimants establishing that, on discontinuance, the drug produces an effect which is worse than other drugs in a similar class. It is asserted that it is part of the Claimants' case, and has always been part of their case, that the severity, incidence and duration of adverse effects on discontinuance in themselves render the drug defective. In other words, the defect relied upon under the CPA is the adverse effects suffered by the user on discontinuance irrespective of the relative severity, duration or frequency of those effects when compared with other drugs in the same class. Mr Kent submits that the GLO is a non-exhaustive list of common issues. It does not trump the pleadings. The Claimants' pleaded case includes at paragraph 12 the case on the defect alleged. Paragraph 12.1 refers to the drug's capacity to cause adverse effects on discontinuance which would make the drug “ more difficult to withdraw from, discontinue or remain free from taking the product”. That allegation preceded and was independent of the further allegation which, putting it shortly, reflects the Claimants' comparative case. The pleadings do therefore embrace a case on defect which is freestanding of the relative nature of the adverse events associated with discontinuance of other drugs of a similar class. The comparative case remains part of the Claimants' case on defect but, as it was put by Mr Kent, the comparative case serves as a bolster to the other element of the case. Mr Kent accepts fully that the scope of the issues to be determined at trial was canvassed before Foskett J but he submits Foskett J never ruled formally on the topics to be covered and the scope of the issues, let alone the detail of the Claimants' case. Foskett J had no need to do so, as the lens through which he was considering the Claimants' case was, for example, the admissibility of various parts of Professor Healy's report and other ancillary matters. He never therefore confronted the scope issue in such a way as to rule upon the length and breadth of the Claimants' case.
There is another issue upon which I heard submissions. It concerns the risk/benefit profile of Seroxat. It arises in this way. The Defence denies the comparative, or “worst in class” case on defect as a matter of fact. It also...
To continue reading
Request your trial
-
Sandra Bailey and Others v Glaxosmithkline UK Ltd
...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 h......
-
Sandra Bailey & Others v Glaxosmithkline UK Ltd
...costs being given by the Claimants' litigation funders. I took over as trial judge in November 2018. The February Pre-Trial Review: [2019] EWHC 337 (QB) 22 As I set out in my judgment of February 2019, it was clear from Mr Kent's submissions at the hearing in November 2018 (the first befor......
-
Bailey and Others v Glaxosmithkline
...The latter pre-trial review concerned the scope of the trial, an issue determined by her in a reserved judgment of 14 February 2019, [2019] EWHC 337 (QB) (“Lambert 1”). As a result, an order was made as to the issues to be determined at 24 The trial commenced on 29 April 2019 and was liste......