Bailey & Ors v Glaxosmithkline (UK) Ltd

In managing complex group litigation, the court may adopt a staged approach where the evidence about value, funding and prejudice remains incomplete. A claim should not be halted merely because its present valuation is uncertain or because individual litigants face funding constraints, particularly where the defendant has substantial resources. The court should assess proportionality on a reasonable working assumption and preserve the pleaded case. It may permit further expert evidence and reassess viability once the parties’ cases are better defined. The possibility of witness reluctance, the loss of an expert, or an alleged litigation advantage will not justify ending proceedings unless the resulting prejudice is sufficiently substantial.

This was a further case management hearing in group litigation concerning alleged withdrawal difficulties and discontinuation symptoms associated with Seroxat. The court had previously directed the parties to provide information about the value of the claims, funding, expert evidence and potential prejudice.

The defendant sought to bring the litigation to an end by strike-out, permanent stay or equivalent case management order. The claimants contended that the claims could proceed, with substituted or updated expert evidence. The issues were whether the claims appeared proportionate, whether funding was sufficient to reach trial, whether the defendant would suffer irremediable prejudice, and whether the court should make a final decision or continue incremental management.

1. Disposition. The court declined to halt the litigation. It permitted the claimants to substitute the proposed experts and directed that updated or new reports be prepared, followed by further consideration of the case.
2. Value and proportionality. The schedules of loss adopted an unsatisfactory approach by attributing all continuing symptoms and consequential losses after the first prescription to Seroxat. The relevant comparison was between the claimant’s actual position and the likely position had another SSRI been prescribed. Damages could only reflect the difference between those situations. The court made a provisional working assumption that the claims might be worth approximately £10 million, rather than accepting either side’s higher or lower presentation.
3. Funding. On the information available, the court was not satisfied that funding was insufficient to take the case to trial. The possible appeal was too speculative to carry significant weight at this stage.
4. Prejudice. Witness reluctance rarely justifies halting proceedings, and a witness summons remained available. The defendant could rely on Dr Shah’s report through a Civil Evidence Act notice. The proposed expert substitutions did not amount to expert shopping, and the trial judge could assess the manner in which the evidence emerged. The pleaded case remained controlling and could not be expanded.
5. Incremental management. A staged process would allow the claimants to demonstrate the high point of their pleaded case and enable the defendant and funders to assess the strength, cost and viability of the litigation more reliably. Incremental management caused no sufficient prejudice and continued to protect the defendant’s position.