Sayers & Ors v Smithkline Beecham Plc & Ors

In group litigation, the court may impose directions and sanctions to identify claims that will continue, be discontinued or await funding decisions. It cannot revoke a group-litigation Practice Direction where that power belongs to the Lord Chief Justice. Separate trials should not be ordered while common issues, inconsistent outcomes and repeated expert evidence make coordinated litigation necessary. Prospective costs-capping is exceptional and requires compelling evidence of excessive, unjustified or disproportionate costs which ordinary case management and detailed assessment will not address. A litigation friend’s settlement may be approved where the benefit of a costs amnesty is materially connected with the claimant’s welfare, even though the settlement limits future claims.

This was a case management conference in the MMR/MR Vaccine Litigation after the Legal Services Commission withdrew public funding. The claimants comprised those seeking to discontinue, those wishing to continue only if funding was restored, those wishing to continue regardless of funding, and those who had not stated their intentions.

The court was asked to make directions for notification, dismissal or discontinuance, future conduct of the group litigation, possible transfer to individual courts, costs-capping, disclosure of existing expert material, and approval in principle of defendants’ proposed settlements. The central issues were how to manage the competing procedural positions fairly and whether the proposed settlements could properly be approved.

1. Case-management directions and sanctions. The court ordered claimants who had not stated their intentions to notify the defendants by 22 October 2004, with dismissal as the proposed sanction for continued non-compliance. Claimants intending to discontinue but not yet having served notices were given the same date to discontinue, agree disposal terms or confirm that they would proceed.
2. Group litigation. The status of the litigation could not presently be terminated. Group litigation was governed by Part 19 of the Civil Procedure Rules 1998, while this litigation had been constituted by a Practice Direction of the Lord Chief Justice. The court’s inherent power to control its procedures, recognised in A B v John Wyeth & Brother Ltd [1993] 4 Med LR 1, did not extend to revoking that Practice Direction without the Lord Chief Justice’s consent. Coordinated management remained necessary because separate trials could produce inconsistent decisions and require repeated expert evidence.
3. Costs-capping. A prospective costs-capping order should be contemplated only where there are grounds to believe that costs may be excessive, unjustified by the scale or complexity of the litigation, or disproportionate to the sums at stake, and where ordinary case management or detailed assessment is unlikely to detect the problem. The remedy is relatively dramatic and requires cogent, compelling evidence. The application was not justified on the evidence then available. The approach in A B v Leeds Teaching Hospitals NHS Trust [2003] EWHC 1034 was considered.
4. Discontinuance and settlement. The court held that claims in group litigation remain separate claims, notwithstanding their common management. Under rule 38.2(2)(c), permission was required for discontinuance where more than one claimant was named in the claim form, even if the claims were not joint. Under rule 21.10(1), court approval was required where discontinuance by a person under a disability amounted to settlement or compromise. The court approved in principle the defendants’ different settlement offers. A costs amnesty was a benefit to the claimants as well as their litigation friends because the parents’ financial security was inseparably connected with the children’s maintenance and care. The additional restrictions in Merck’s terms were a matter of degree and did not prevent approval in principle.
5. Permission was given for specified statements of case and expert reports to be disclosed for funding, judicial-review and current-proceedings purposes. Notices of discontinuance and consent orders were not finally declared effective pending the claimants’ opportunity to reassess their options.