AB and Others v John Wyeth & Bros Ltd; AB and Others v Roche Products Ltd

In large group litigation, access to the courts is fundamental but subject to the court’s inherent duty to prevent abuse and injustice. The court may assess the viability of the litigation as a whole, weighing likely recoveries and the claimants’ benefit against irrecoverable defence costs, difficulties of liability and causation, delay, prejudice, and the availability of funding and representation. Withdrawal of legal aid may be relevant both to viability and to whether the case can reach trial, although the court cannot require the Legal Aid Board to fund it. Once a fair trial is no longer realistically possible, the court should strike out the proceedings rather than prolong them with further procedural orders. Article 6 does not prevent that result where the limitation serves a legitimate aim and protects the fair-hearing rights of both sides.

The appeals arose from the Benzodiazepine group litigation against the manufacturers of Ativan and Valium. Ian Kennedy J struck out the remaining Wyeth and Roche claims as an abuse of process and, in the Roche proceedings, also for want of prosecution. The judgment under appeal is reported at [1996] 7 Med LR 292.

By the time of the appeals, legal aid had been withdrawn, the number of claimants had fallen sharply, and little progress had been made towards trial. The central issues were whether the court could assess the viability and proportionality of the group litigation as a whole, whether delay and lack of funding made continuation abusive, and whether Article 6 prevented strike-out.

Appeals dismissed unanimously, with costs. Leave to appeal to the House of Lords was refused.

1. Per Stuart-Smith LJ, the court’s inherent jurisdiction is a duty to prevent its process being used to produce injustice or make a fair trial impossible. The jurisdiction is not confined to closed categories, although the power should be exercised cautiously. In group litigation the court may take an overall view of the litigation rather than determine each surviving claim in isolation.
2. The judge was entitled to weigh the modest likely recoveries against the defendants’ enormous irrecoverable costs, the difficulties of proving historical breach and causation, limitation problems, delay and prejudice, the reduction in the number of claimants, defects in the pleadings, and the absence of effective representation. Withdrawal of legal aid was relevant both as support for the viability assessment and because it removed the practical means of progressing the litigation. The analogous approach under section 33 of the Limitation Act 1980 supported an overall assessment of prospects and quantum without trying individual cases on affidavit.
3. Where complex group litigation cannot realistically reach trial without professional lawyers and expert witnesses, and there is no prospect of funding, the judge is bound to strike it out. Further adjournments or conditional unless orders would merely prolong needless expense.
4. Delay and resulting prejudice could properly be treated as circumstances supporting abuse of process. The ordinary individual-litigation approach associated with Allen v McAlpine was not necessarily suitable for large group litigation, and the delay issue added little as an independent ground once abuse had been established.
5. Brooke LJ agreed. Article 6 required the court to take account of the fair-hearing rights of both claimants and defendants. The right of access is subject to limitations pursuing a legitimate aim and bearing a reasonable relationship of proportionality to that aim. Since the judge had found that a fair trial was no longer possible, Article 6 did not prevent termination of the proceedings. The court had no power to require the independent Legal Aid Board to continue funding them; any challenge to withdrawal lay by judicial review.
6. The court had found no evidence that the defendants engineered the delay or withdrawal of funding. Such conduct would have been a potent consideration against strike-out. Aldous LJ agreed with both judgments.

• Court of Appeal (Civil Division) dismissed the appeals, upheld the strike-out for abuse of process, and refused leave to appeal to the House of Lords.
• High Court of Justice, Queen’s Bench Division — Ian Kennedy J struck out the Wyeth proceedings for abuse of process and want of prosecution, and the Roche proceedings on both grounds.