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Since its emergence, multi-plaintiff litigation has charted a difficult and sometimes hazardous course.
The recent £7 million settlement of the multi-handed Myodil action is, however, a result which has done much to establish the credibility of the group action system.
Solicitor David Harris,
senior partner at Alexander Harris, of Sale, Cheshire, masterminded the action. Harris, a specialist in pharmaceutical and multi-plaintiff claims who was also involved in the Opren litigation, is the first to admit that despite his experience, Myodil still presented a steep learning curve.
However, he is convinced that the settlement of the case, which centred on the effects of spinal injections of Myodil for back scans, goes a long way towards giving this type of action credibility and ensures it has a role in the future.
Harris, whose past experience includes vaccine cases, heart valve claims and the Hillsborough litigation, said he would be proud to be remembered as “the man who got £7 million for the Myodil plaintiffs”. And he has no doubts that the offer accepted was the best possible.
“My belief is that we could never have got more had we gone to trial,” he said.
Myodil presented a major test for group litigation. It involved around 150 different firms of solicitors and the investigation of around 3,000 individual claims. In the final action the number of actual plaintiffs was reduced from 3,000 to 425. Their cases were scheduled to be heard as a group action beginning at the High Court this October.
The need for the estimated three-month defended hearing was averted, however, by Mr Justice May’s approval of the agreed £7 million pay-out from Glaxo Laboratories. Settlement was announced at the High Court on 31 July after long and complex negotiations behind the scenes.
Of the 425 plaintiffs, 421 have accepted payments, ranging in individual cases from around £1,000 to tens of thousands. Four have refused to accept the settlement terms and it remains to be seen what will happen to their claims.
The case presented many difficulties, not least in the area of causation, and Harris admits that some original claimants have been left disappointed and empty handed.
One major causation problem was the predicament of those who had been injected with Myodil but who had also undergone back surgery.
In their cases the problem was that the arachnoditis, inflammation of nerve endings of the spinal column, blamed on the Myodil, could also have been caused by the “invasive treatment”.
Once the settlement offer had been accepted, however, following approval by specialists Daniel Brennan QC and Augustus Ullstein QC, another major problem emerged, namely apportionment.
Part of the terms of the settlement were that all the claimants in the final group of 425 should receive something.
This meant that some individuals, who might have received nothing had the case run its course, won a pay-out and others who might have received higher awards possibly received less.
Dividing the pot, said Harris, was done by way of a points system devised with the help of Brennan and Ullstein and approved by Mr Justice May. Harris is convinced that this provided the fairest result for all concerned.