Sayers & Ors v Smithkline Beecham Plc & Ors

In managing group litigation, the court may require claimants to plead their cases and provide supporting expert evidence within a specified period. An “unless” order may be made for non-compliance even where the order is the first of its kind, provided that it is appropriate and the deadline is attainable. The court controls the pace of litigation and may use a striking-out sanction to prevent proceedings from drifting. Truly exceptional difficulties may justify an extension of time and relief from the sanction. The degree of particularity required in pleading causation depends on the circumstances of each claim.

This was a case management conference in the MMR/MR Vaccine Litigation. The court considered directions for the remaining claims, applications by four claimants concerning notices of discontinuance, the future management of the litigation, and proposed requirements for particulars of claim supported by medical expert reports.

The principal issue was whether the continuing claimants should be required to plead the basis of causation by the end of June 2006, backed by an “unless” order providing for the claims to be struck out if they failed to comply.

1. Case management directions. The court made directions requiring the remaining claimants to provide particulars of claim and supporting medical evidence addressing their conditions, prognosis and the alleged link with the relevant vaccines. The pleadings had to set out the proper basis on which causation would be argued. The required level of particularity would vary between cases, and it remained for the claimants’ advisers to determine how their case should be pleaded. If the defendants considered the pleading inadequate, they could use the procedures available under the Rules.
2. Unless order. There was no rule preventing an “unless” order merely because the claimants were being ordered for the first time to file particulars of claim. Such an order could be made where appropriate. The timetable was not unattainable. Information from the Legal Services Commission indicated that the necessary budget, expert reports and funding decisions could be obtained in time for compliance by the end of June.
3. Proportionality and fairness. The court recognised that delay by experts or the Commission could affect compliance. Nevertheless, the litigation had already been delayed for many months, and urgency was needed to prevent the remaining claims from drifting. The claimants could apply for an extension of time and relief from the striking-out sanction if truly exceptional and compelling circumstances made compliance unattainable.
4. Other applications. The applications by three claimants to withdraw notices of discontinuance were adjourned because of a potential conflict of interest and the resulting need for proper representation. Darra Gillespie’s application was also adjourned and was to be amended to seek a declaration that her notice of discontinuance had no legal effect. Other agreed orders concerning discontinuances, settlement, the register of claimants and costs were made.