On 19 July, Justice Ian Kennedy struck out the last of the benzodiazepine cases as an abuse of process and for inordinate delay.
The litigation began in 1988. There were about 17,000 claimants who made allegations of adverse effects against the manufacturers and prescribers of these products, which were designed to relieve anxiety and were used worldwide by millions.
More than 5,500 commenced proceedings, virtually all legally aided. They were represented by about 3,000 law firms. Lack of resources was not an obvious problem – £35 million of public funds were spent.
Following observations on the merits of many cases by the defendants and the court, the Legal Aid Board (LAB) required the plaintiffs' own advisers to reconsider each action. This resulted in a reduction to 1,200. But, with continuing concerns over the lack of merits and viability of these cases, legal aid was withdrawn. Only 78 proceeded, all but one as litigants in person, and these have now been struck out.
Can such wasteful litigation be avoided in the future?
There is little doubt that advertising by solicitors encouraged many people to claim who had no hope of success. Some of those adverts have been condemned by the courts, but the Law Society has been slow to criticise them. Its working party report (Group Actions Made Easier, September 1995) urged the society to review its advertising criteria and it ought to do so as a matter of urgency.
But group litigation, particularly in the pharmaceutical field, will inevitably produce a number of bad claims. What should be done about these?
A group action is no stronger than its constituent parts. In a unitary pharmaceutical case, a claimant often faces great problems of proving causation in his or her individual case. Such issues are usually determinative, and the problems do not go away simply because a claimant is part of a group action.
Therefore, it is vital cases are properly screened, first by the claimant's own lawyers but also by the LAB which has a statutory and non-delegable duty not to fund bad cases. Both sides need to address the real issues at an early stage.
A failure to do so helps neither party and is contrary to the thrust of the reforms proposed by Lord Woolf. It can only result in a repetition of the problems encountered in the benzodiazepine litigation.