Bailey & Ors v Glaxosmithkline (UK) Ltd

Case management powers may, in an exceptional case, be used to bring long-running proceedings to an end. The power should be exercised cautiously where the court has not determined the merits and the claimants have a realistic prospect of funding and progressing the litigation.

The relevant funding question is whether the litigation can be funded to trial and any appeal. The court need not require security equivalent to all of the defendant’s projected costs. Where experts become unavailable after substantial delay, substitution may be permitted if the replacement experts have suitable expertise and will comply independently with their duties to the court. A staged process of disclosure, expert assessment, valuation and lead-case selection may be appropriate before deciding whether proceedings should continue.

The claimants, originally numbering 493, brought group litigation alleging that Seroxat, a prescription-only paroxetine-based antidepressant, was defective under section 3 of the Consumer Protection Act 1987 because withdrawal symptoms were more severe than those associated with other selective serotonin re-uptake inhibitors, or because adequate warnings had not been given.

The litigation had been prepared for a lengthy trial but effectively stalled after public funding was withdrawn. More than four years later, over 100 claimants wished to proceed with new solicitors, revised funding arrangements and proposed substitutions of expert witnesses. The defendant sought orders bringing the proceedings permanently to an end, alternatively requiring detailed further steps. The central issue was whether the court should exercise its case management jurisdiction to prevent the litigation continuing.

1. The application to bring the proceedings permanently to an end was refused at this stage. This was not an application for strike out or summary judgment, and the court had not assessed the intrinsic merits of the claim. Although the case management jurisdiction could, in an appropriate case, be used to terminate proceedings, doing so on the material then available would be unusual and premature. The defendant remained entitled to seek summary judgment or renewed case management relief later.
2. The court adopted the approach that the relevant funding question is whether the claimant or defendant can fund the litigation to trial and any appeal. It was not necessary to investigate whether a judgment could ultimately be enforced, or to require the claimants to provide security equivalent to the defendant’s estimated total costs. The evidence of funding and after-the-event insurance was accepted provisionally, subject to review.
3. The proposed substitution of experts was not, in principle, objectionable. The retirement or unavailability of experts after a five-year delay justified considering replacement experts in the round. The court detected no expert shopping. Any replacement expert would have to prepare an independent report complying with Part 35 of the Civil Procedure Rules and could not simply adopt another expert’s conclusions without forming an independent view.
4. A staged and cost-sensitive process was directed. The claimants were to provide further standard disclosure, obtain estimates from proposed experts of the work and cost required, and exchange assessments and commentaries. They were also to prepare schedules for four cases representing different levels of value, identify the likely distribution of claim values, and nominate two further lead cases. The court considered that six lead cases would probably suffice to address the generic issues.
5. Fortitude Law was appointed lead solicitor for the purposes of implementing those directions. The court retained control over whether the expert substitutions and later stages of the litigation would be sanctioned.