Karen Louise Tongue & Ors v Bayer Public Limited Company & Ors

A Group Litigation Order is appropriate where claims raise common or related issues of fact or law and a sufficient number of claimants seriously intend to pursue them. Once those threshold conditions are met, the court retains a discretion. That discretion must be exercised in accordance with the overriding objective, including the need to deal with cases justly and at proportionate cost.

Relevant considerations include the availability and comparative cost of individual and collective case management, the risk of inconsistent judgments, the costs and efficiency of expert evidence, the suitability of test cases, and whether an alternative collective arrangement would provide the same procedural advantages.

Approximately 200 women brought claims arising from the fitting of Essure contraceptive devices. They alleged that the devices were defective and alternatively that the Bayer defendants were negligent. Some claimants also advanced clinical-negligence claims against treating doctors, which were stayed.

The claimants applied for a Group Litigation Order. The Bayer defendants supported the application, and the remaining defendants did not oppose the proposed collective management. The central issues were whether the statutory threshold for a Group Litigation Order was met and whether such an order should be made in the court’s discretion.

1. The court was satisfied that the threshold requirements for a Group Litigation Order were met. The claims involved common or related issues of fact or law, including whether the Essure device was defective or negligently supplied. There were approximately 200 claimants who seriously intended to proceed.
2. The court applied the threshold approach identified by Jackson LJ in Alyson Austin and Others v Miller Argent (South Wales) Limited [2011] EWCA Civ 928, at paragraph 35. No minimum number of claims was required; the number and nature of these claims were sufficient.
3. Claims involving device migration with a failed or absent confirmation test, perforation at insertion, or fragmentation on removal before the confirmation test were excluded because they raised potentially distinct clinical-negligence issues. Individual issues of damages did not prevent group litigation.
4. In exercising its discretion, the court considered the overriding objective. Collective management was likely to reduce funding and expert-evidence costs, avoid inconsistent judgments, and provide proportionate administration. The court also considered the limited costs of maintaining the group register and advertising, the likely use of lead or test cases, and the lesser advantages of test-case management or “GLO Lite”.
5. The court concluded that a Group Litigation Order was the most effective method of managing the claims justly and at proportionate cost. It recommended that the President of the King’s Bench Division make an order in the agreed terms, subject to the stated amendments.