MMR cases face collapse after funding withdrawal

Alexander Harris appeals Government decision to withdraw funding; cost of premium makes CFAs unlikely option

The forthcoming MMR litigation risks severe disruption following the withdrawal of Government funding, which has left claimant lawyers facing the prospect of funding the action out of their own pockets.

Several multi-party actions have collapsed following a withdrawal of public funding. However, the move to withdraw legal aid by the Legal Services Commission (LSC), effective from the end of September, is surprising considering the importance that has been attached to finding a successful resolution to the MMR dispute by means of independent judicial inquiry.

Conversely, it could be equally damaging for the LSC to fund the lengthy trial, set down for 28 days, from 28 April 2004, before Mr

Justice Keith in the Queen’s Bench Division of the High Court, if the claimants were to lose the case. Under current rules, the LSC will only provide funding if a claim has a 60 per cent chance of success.

Unlike the UK tobacco litigation, in which lawyers, having been denied legal aid, fought the case, without success, under a conditional fee arrangement (CFA), it is unlikely that the claimants’ lawyers in the MMR case, Alexander Harris and Freethcartwright, will do the same.

Martyn Day, the partner at Leigh Day & Co who acted for the claimants on a CFA in the tobacco litigation, told The Lawyer: “In my experience, the insurers will be enormously wary, on the basis that the case may not to be strong enough. The premiums, if cover is provided, will be absolutely enormous. If the legal aid is withdrawn I can’t see how it can go ahead.”

Lawyers at Alexander Harris are in the process of appealing the LSC’s decision earlier this month to withdraw funding. A funding review committee of independent lawyers will hear the appeal on 30 September. “We’ll be making the strongest possible representations to the appeal committee that legal aid should be continued until the MMR vaccine trial,” read a statement from Alexander Harris.

It is understood that a pre-trial review has been scheduled for 2 October. It is expected that the claimants will seek to adjourn the trial because of disruption to its preparation caused by the withdrawal of funding.

An LSC spokesperson said the case was originally funded publicly because it was issued under the Legal Aid Act 1988. He added: “For now, all we can say is that the statutory funding criteria were not met, but the decision is not definite yet, it is subject to the review on 30 September.”

There is an awesome line-up of counsel acting for the defendants. GlaxoSmithkline has appointed Davies Arnold Cooper, which has instructed Charles Gibson QC, Prashant Papat and James Martin-Jenkins, all tenants at Roger Henderson QC’s 2 Harcourt Buildings, as well as Michael Spencer QC, who is head of Crown Office Chambers.

Merck has hired Lovells, which is instructing Andrew Prynne QC and Toby Riley-Smith of 2 Harcourt, and Jonathan Waite QC of Crown Office Chambers. CMS Cameron McKenna, instructed by third defendant Aventis Pastaur, has appointed Brick Court Chambers barristers George Leggatt QC and Harry Matovu.