SARAH JANE WILSON & ORS v BAYER PHARMA AG & ORS

A solicitor who has terminated a retainer will ordinarily not be required to continue acting for the client. The court’s task on an application under CPR 42.3 is distinct from adjudicating whether termination was contractually justified. Where the retainer has unequivocally ended, the court may declare that the solicitor has ceased to act, while addressing practical safeguards for service and case management. A claimant may discontinue under CPR 38.2. Where there are multiple claimants, permission is required if the others do not consent, but permission should generally be granted where continuation would impose litigation against the claimant’s will and materially worsen the manageability and proportionality of the proceedings.

The proceedings concerned claims by 231 individuals alleging injury arising from the pregnancy-test drug Primodos. Their solicitors, PGMBM Law Ltd, terminated the retainers of 183 claimants who wished to continue and retained 48 claimants solely to seek permission for discontinuance.

PGMBM applied to come off the record and sought permission for the 48 claimants to discontinue. The hearing took place in private and without the defendants because the relevant circumstances were covered by legal professional privilege. The issues were whether the solicitor should be declared to have ceased acting and whether the remaining claimants should be permitted to discontinue without the written consent of the other claimants.

1. Applications granted. PGMBM was permitted to come off the record, and the 48 claimants were permitted to discontinue, subject to PGMBM’s undertakings concerning post-box arrangements and claims for costs.
2. Under CPR 42.3, the court’s declaration that a solicitor has ceased to act is distinct from contractual termination of the retainer. The court need not determine whether the solicitor was justified in terminating the retainer. Any remedy arising from an unjustified termination may be pursued against the solicitor separately in damages, indemnity or costs.
3. The court did not need to decide whether there are circumstances in which it could refuse an order under CPR 42.3 after unequivocal termination. In the present circumstances, maintaining the fiction that the solicitor-client relationship continued would create disadvantages without practical benefit. The claimants could continue unrepresented until further order, with the position available for review by the managing judge.
4. The principles concerning separate representation in consolidated proceedings, identified in Lewis and Another v Daily Telegraph Ltd (No. 2) [1964] 2 Q.B. 601 and referred to in Ong v Ping [2015] EWHC 3258 (Ch), were relevant to the practical problem of maintaining effective case management where numerous claimants lacked common representation.
5. Under CPR 38.2, a claimant in proceedings involving more than one claimant may discontinue only with the written consent of every other claimant or with the court’s permission. The ordinary principle that a party should not be forced to litigate against his or her will, together with the need to manage the proceedings justly and at proportionate cost, justified permission. Refusing or postponing discontinuance would increase the practical burden without a clear compensating advantage.

First-instance applications in ongoing group litigation. No appellate history was stated.