Legal frayed

It is a fiction encouraged by the authors of the Civil Procedure Rules that there could ever be a ‘level playing field’ in contested litigation between very poor claimants and very rich defendants. The imbalance is most starkly demonstrated in multiparty litigation involving publicly-funded claimants and defendants with deep pockets, such as pharmaceutical companies, insurance companies or Government departments.

Publicly-funded multiparty actions have a poor record of getting to court, or of succeeding when they do. Notable failures include the whooping cough vaccine litigation, which collapsed in 1988 after a preliminary court ruling, and the benzodiazepine litigation, which collapsed in 1994 at a total cost to the taxpayer of £30m-£35m before trial for the substantive issues involved.

The recent withdrawal of public funding in two other high-profile multiparty actions has again put in question the viability of the public funding of such cases. In October 2003, the Legal Services Commission (LSC) gave notice that it was withdrawing funding from the claimants in the MMR litigation; and January this year saw the collapse of a group action brought by former patients of gynaecologist Rodney Ledward, who were suing him for rape or sexual assault.

In September 1998 a group of children suffering from autistic spectrum disorders brought legal proceedings against the manufacturers of the MMR vaccines they had been given. It was alleged on the claimants’ behalf that they had developed normally from birth until being given the vaccines, after which they developed behavioural difficulties and were diagnosed as suffering a novel type of bowel disease and an autistic spectrum disorder. By August 2003, proceedings had been issued on behalf of 877 claimants (out of a total of some 1,600 who had received public funding).

At the heart of the claimants’ case is the allegation that the measles virus component of the MMR vaccine was causing a new pathology in the children’s bowels involving a ‘leaky gut’, and that either the measles virus component of the MMR vaccine directly, or other neuro-toxic breakdown products of the process of digestion, was causing damage in the children’s brains.

From the time of the inception of the claims until October 2003, scientists were working on behalf of the claimants in England, Scotland, Ireland and the US to shed light on the mechanism of the bowel disease and brain damage suffered by the children. For their part, the defendant pharmaceutical companies sought to discredit and disprove the scientific case advanced by the claimants’ experts.

The claims were funded under the Legal Aid Act 1988 and the Civil Legal Aid (General) Regulations 1989, not the Access to Justice Act 1999 and the Funding Code.

Under the Legal Aid Act, there is a presumption of legal aid being granted provided that certain conditions are met. The foremost of these is the legal merits test under Section 15(2), that a party “…has reasonable grounds for taking, defending or being a party to the proceedings”. Section 15(3) of the act provides that legal aid may be refused if it is unreasonable that the applicant should be granted representation – the ‘reasonableness test’. The certificates may be discharged under Regulation 77 of the 1989 regulations if “the assisted person no longer has reasonable grounds for taking, defending or being a party to the proceedings, or for continuing to do so…”.

The claims were advanced until October 2003, when the certificates were discharged under Regulation 77, as it was deemed that the claims failed the legal merits test under Section 15(2) of the 1988 act. At the time of the withdrawal of funding from the claims, a trial had been listed of the major causation issues, to begin in six months. Millions of pounds of public funds had been spent advancing the claimants’ claims to trial.

The decision to withdraw funding is subject to judicial review.

By contrast with MMR, the claims brought against Ledward raised no issues of wider public importance. Like MMR, the litigation was protracted, expensive to the public purse and collapsed shortly before trial.

In 1998 Ledward was struck off the medical register after being found guilty of incompetence in the performance of 13 operations. Allegations of rape and sexual assault were made in 2001 after Ledward’s death at 62 the year before. Compensation claims were subsequently brought by 59 women alleging that Ledward raped or sexually assaulted them. The actions were brought against Ledward’s former employers, Kent and Medway Health Authority and East Kent Hospitals NHS Trust. Eight of the claims were chosen as a group to be tried. The claims within the group raised common issues of limitation and duty of care, but in each case the allegation of rape or sexual assault was denied and fell to be determined on its own facts.

The claims were funded by legal aid. It has been estimated that £2m was spent advancing the claims to trial. Funding was withdrawn several days before trial because a cap on the claimants’ legal costs ultimately left them short of the funds needed to take the case to trial. On 23 December 2003, legal aid was withdrawn only weeks before the claims were due to be heard over a period of seven weeks, starting on 16 January 2004.

The MMR litigation clearly raises issues of high public interest and importance. The outcome of the claims has far-reaching implications for public health. The very existence of the litigation has raised public awareness about allegations made in the scientific arena about the MMR vaccine. Public health experts have expressed concerns about the possibility of a measles epidemic owing to the poor uptake of the vaccine in some parts of the country.

The withdrawal of funding in both the MMR and Ledward cases so close to trial (in the Ledwood case virtually at the doors of the court) and after years of preparation involving the expenditure of large sums of public funds does nothing to encourage public confidence that funds are being well spent. When multiparty actions are left high and dry, the individual claimants are left wondering if their claims will ever be resurrected, the LSC writes off the costs already incurred and the lawyers go home. The wider public, when news of events at the legal coal face filters through to them in newspaper articles and news bulletins, wonders at the waste of so much time, money and expertise.

The legal aid bill is currently running at approximately £1.85bn per year. It must be recognised that just as there is the potential for infinite demand on NHS resources, there is also the potential for an infinite amount of litigation on health-related issues and thus an infinite demand on the bodies prepared to fund such litigation.

It may be thought that the collapse of cases that raise issues of wider public importance casts doubt on the adequacy of the strategies contained within the rules of court for dealing with the case management of group actions and the statutory framework-making provision for the funding of such actions to trial.

The LSC would no doubt say it is not part of its remit to fund speculative claims. In a normal claim that must be right. But there is an argument that some claims and some allegations are so important that they ought to be heard. A claim of high public importance, affecting a significant proportion of the population, but with only poor prospects of success (say 20 per cent), may be a far worthier recipient of public funds than a claim with 80 per cent prospects of success but the outcome of which affects the claimant and defendant only.

There are now statutory provisions in place for cases said to be in the public interest to attract priority status for public funding. The Funding Code defines “wider public interest” as “the potential of the proceedings to produce real benefits for individuals other than the client (other than benefits to the public at large which normally flow from proceedings of the type in question)”.

The Lord Chancellor’s Department has said that novel points of law that are likely to have a real impact would be included. But outside the narrow band of cases raising points of law of high significance, the test is obviously highly subjective. It is questionable whether or not the highly political MMR litigation would have been granted funding under the new provisions, for example.

It is important that the new provisions for funding cases of wider public interest work and are seen to be working. Public confidence in the system of civil justice may be thought to be every bit as important as public confidence in the criminal justice system.

For the present it remains to be seen how the new provisions will work in practice. The jury is still out. In the meantime, it may be assumed that public concerns as to the safety of the MMR vaccine remain and may persist indefinitely. These issues do not just vanish, either from society or the courts.

Adam Korn is a barrister at Seven Bedford Row