Snell & Ors v Robert Young & Co Ltd. & Ors

A court may strike out claims within group litigation as an abuse of process where the litigation is unviable, necessary causation evidence is unavailable, further funding is unrealistic, and continuation would expose defendants to unjustifiable irrecoverable costs. The assessment may be made in the overall context of the group litigation; a claimant cannot insist that a claim be treated as though it had progressed independently of that group.

Dismissing group litigation can dismiss every registered individual claim where the procedure is a collective case-management mechanism rather than a separate group action. The slip rule permits correction of an order to give effect to the court's original intention, but not a reconsideration of the merits.

The appellants were farmers who claimed damages for illness allegedly caused by low-level exposure to organophosphate sheep-dip products. Their claims formed part of the Organophosphate Litigation under a Practice Direction. A publicly funded pilot study and subsequent expert investigations did not produce adequate evidence establishing causation, and funding for the group litigation was withdrawn.

Morland J in the Queen's Bench Division dismissed the group litigation as an abuse of process. He also dismissed four individual claims under CPR Part 24. His later order made clear that all claims on the group register were dismissed for abuse, while the remaining claims were not additionally dismissed under Part 24.

The claimants appealed, contending that the group dismissal had left their individual actions alive, that the judge could not correct that position after his note of 23 January 2002, and that dismissal for abuse was unjustified. A separate appellant, who had not been served with the strike-out proceedings, relied on Article 6 of the ECHR.

Appeals dismissed unanimously. Simon Brown LJ gave the principal judgment, with which Buxton and Carnwath LJJ agreed.

1. The July and November 2001 judgments, read fairly, intended to end the whole litigation. The special group procedure was not a separate action capable of being dismissed while leaving the registered claims to proceed independently. The claims were unviable and their continuation would be oppressive because it would expose defendants to further substantial irrecoverable costs.

2. Carnwath LJ added that, under CPR 19.10, group litigation is a collective description for individual claims managed under a Group Litigation Order. It does not denote an action brought by a separate group. The order dismissing the Organophosphate Group Litigation therefore dismissed the registered claims; the separate dismissal of four claims under Part 24 was an additional ground.

3. The judge's note of 23 January 2002 did not prevent correction of the order. Under CPR Part 40.12(1), as explained in Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc [2001] EWCA Civ 414, the slip rule may correct an order to reflect the court's original intention but cannot permit second thoughts. The note was not a valid exercise of that power, particularly as it was issued without hearing the defendants. The January order correctly gave effect to the earlier judgments.

4. The seven claims not summarily dismissed under Part 24 were nevertheless properly struck out as an abuse. The court applied the approach in the Wyeth litigation. The absence of expert evidence on causation, the lack of realistic future funding, the extensive unsuccessful investigation already undertaken, and the costs burden justified an overall conclusion that the claims could not be brought to trial. A detailed cost-benefit analysis was neither required nor appropriate.

5. The fact that a claim escaped summary judgment did not establish a positive prospect of eventual success. The judge had only declined to rule out the theoretical possibility that further funding, disclosure and expert evidence might make it viable.

6. The unserved claimant was not denied a fair hearing under Article 6. He had liberty to apply to vary the order and could advance any distinguishing facts in that application. The proceedings, viewed as a whole, were fair.

7. The judge was wrong to suggest that dismissed claimants could bring fresh viable proceedings. Under Walkeley v Precision Forgings [1979] 1 WLR 666, the limitation position prevented that course. The error did not undermine the discretionary decision to strike out the existing claims.

• Court of Appeal (Civil Division) Dismissed the claimants' appeals and upheld the dismissal of the registered claims as an abuse of process.
• High Court of Justice, Queen's Bench Division (Morland J) Dismissed the Organophosphate Litigation and all claims on the group register as an abuse of process. Four claims were also dismissed on the additional basis that they had no real prospect of success under CPR Part 24.