Parish v Roche Products Ltd

A court controlling group litigation may impose cut-off dates to secure fair, economical and efficient progress. Failure to comply may exclude a claim from the group, but does not alone justify striking out a free-standing claim, particularly where it appears to have been brought within the statutory limitation period. Strike-out may nevertheless be ordered on independent grounds where medical evidence does not establish, to the standard of reasonable probability, that the alleged injury was caused by the defendant’s conduct. The court may also use its inherent jurisdiction where the evidential difficulties and likely expense make continuation inappropriate.

The applicant brought a personal injury claim alleging that Valium had caused serious psychiatric and neurological injury. His claim formed part of court-controlled benzodiazepine litigation, but he failed to comply with the prescribed statement of claim and medical-report cut-off date. Master Prebble struck out the claim on the ground that the medical evidence did not substantiate the alleged injuries. Ian Kennedy J dismissed the applicant’s appeal on the basis that the group-litigation directions had not been complied with.

The applicant sought leave to appeal, arguing that exclusion from the group litigation infringed his rights of access to the courts and his apparent limitation-period rights. The central issues were whether the cut-off date justified strike-out and whether the medical evidence supported causation.

Application dismissed with costs. Brooke LJ delivered the reasoned judgment, and Sir Brian Neill agreed.

1. A judge entrusted with control of group litigation may impose cut-off dates requiring prescribed statements of claim and supporting medical reports. Such dates may exclude non-compliant claims where they are necessary to secure the fair, economical and efficient progress of the litigation. The approach was consistent with the reasoning in Nur v John Wyeth & Brother Ltd [1993] PIQR 72 and the earlier benzodiazepine authorities, including [1992] 1 WLR 168 and [1993] 4 Med LR 1.
2. Exclusion from group litigation does not, without more, justify striking out the claim as free-standing litigation. The existence of an apparently valid right to sue within the limitation period under section 11 of the Limitation Act 1980 was an important consideration. The group-litigation cut-off controlled participation in the group; it did not automatically extinguish an individual claim.
3. Medical evidence supporting causation in a civil claim must establish a causal connection on the balance of probabilities, or to the standard of reasonable probability. Evidence that Valium might possibly or conceivably have caused the alleged condition was insufficient. Neither report substantiated the applicant’s case.
4. The court was entitled to exercise its inherent jurisdiction to strike out the claim. The applicant had been unable, over nearly three years, to obtain medical evidence substantiating causation, while the history of the benzodiazepine litigation showed that proving causation would involve very substantial difficulty and expense. Principles of access to the courts, including those reflected in the European Convention on Human Rights, did not require continuation of an unsupported claim. Even if causation were established, negligence would still have to be proved in relation to events several decades earlier.

• Court of Appeal (Civil Division): dismissed the application for leave to appeal with costs.
• High Court of Justice, Queen’s Bench Division: Ian Kennedy J dismissed the applicant’s appeal on 19 October 1995.
• Master Prebble: struck out the claim on 20 October 1994 after granting leave to amend the statement of claim.