CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 26475/95                       by Geraldine ALFORD and 57 others                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 9 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 4 October 1994 by Geraldine ALFORD and 57 others against the United Kingdom and registered on 9 February 1995 under file No. 26475/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are all British citizens, a complete list is annexed to this report. They are represented before the Commission by Freeth Cartwright Hunt Dickins, a firm of solicitors practising in Nottingham.        The facts of the case, as submitted by the applicants' representative, may be summarised as follows.   A.    The particular circumstances of the case        Between 1988 and 1992 a large number of proceedings were issued by individual plaintiffs who alleged that death or personal injury had resulted from the taking of one or more Benzodiazepine drugs, which it was alleged were addictive, induced dependency and caused physical, psychological, social and intellectual impairment, mental distress and potential drug withdrawal syndrome. Some plaintiffs made claims against the manufacturers of the drugs alone and others claimed against both the manufacturers and those who had prescribed the drugs ("the prescribers"). Some of those who had prescribed the drugs were consultant psychiatrists employed by Health Authorities and others were general practitioners. It appears from the conduct of the case, that the claims against the prescribers were brought in the alternative; the plaintiffs only intended to pursue the claims against the prescribers if the claims against the manufacturers failed.        The applicants were amongst the group of plaintiffs that sued both the manufacturers and the prescribers of the drugs.        On 6 December 1990 a Practice Note was issued by the then Lord Chief Justice, Lord Lane, that the progress of all of the "Benzodiazepine" claims should be monitored by a single Judge, Mr Justice Ian Kennedy (Kennedy J).        Kennedy J subsequently treated the claims concerning the Benzodiazepine drugs as a multi-party action.        Although the cases were administered together, each claim was issued separately and involved separate and individual claims for damages. The plaintiffs in these domestic proceedings were not "joint plaintiffs" but were a group of individuals whose claims were administered together.         By October 1992 there were approximately 5,000 sets of proceedings in the Benzodiazepine litigation. In approximately 3.4% of these actions, the prescribers of the drug were joined with the manufacturer as co-defendants. In 19 cases it was the consultant psychiatrist employed by the relevant Health authority who was the prescriber, and for whom the Health Authority was vicariously liable; in approximately 150 cases the prescriber was the general practitioner; there were also a small number of cases where the plaintiff claimed against both the Health Authority and general practitioner, in addition to the manufacturer.        On 23 October 1992 Kennedy J struck out the claims against the Health Authority prescribers. The strike out was made pursuant to Order 18 Rule 19 of the Rules of the Supreme Court 1981 and under the inherent jurisdiction of the court, on the following grounds:      "that it would be unjust and an abuse of the process of the      court for the Health Authorities to be required to remain      in this litigation because:        i.     They cannot properly defend the claims against them            without being present at the generic trial;        ii.    The claims made against them could not reasonably have            been brought if the primary claims were not being            advanced;        iii.   The cost to the Health Authorities of taking as            limited a part in the generic trial as they can fairly            take would bear no sensible relationship to any            benefit that the Plaintiffs might hope to obtain from            their inclusion."        On 15 March 1993 Kennedy J struck out the claims against the general practitioner prescribers, pursuant to the same powers and relying on the same reasons, but adding two additional reasons. The first additional reason was that if the claims against the general practitioners were stood over for possibly another 4 years (until after the trial against the manufacturers), the treatments by the prescribers would be 15 or more years in the past and many prescribers would be either dead or disabled in their recollection. The second additional reason resulted from the fact that the vast majority of the plaintiffs were legally aided. Since the claims against the prescribers were only going to be pursued if the action against the manufacturer failed, any damages that legally aided plaintiffs might recover against the prescribers, would be consumed by the legal aid charges for the costs of the unsuccessful action against the manufacturers.        The applicants' claims against the manufacturers of the drugs remained in existence, despite the striking out of the claims against the prescribers.        The plaintiffs who had had claims against the prescribers, appealed to the Court of Appeal against both striking out orders. The applicants were among the group of plaintiffs who appealed. On 26 November 1993 the Court of Appeal dismissed the appeal. The Court of Appeal stated inter alia that:        "in the absence of any plea by the manufacturers that any      negligent prescribing constituted a novus actus      interveniens, it is clear that if liability is established      against the manufacturers, they will be liable for all the      damages that can be proved to have been caused, including      any that is consequent upon the prescribers' prescription.      On the other hand, it is common ground that if the      Plaintiffs succeed only against the prescribers, the      quantum of damages recoverable will be very modest."        The Court of Appeal also stated that in most cases it would be inappropriate to enter into a cost benefit analysis of the plaintiffs' prospects of receiving a certain sum and the defendants' cost of defending the action. However, in this case the prescriber defendants would be put to astronomical expense in defending the contingent claims and having their interests represented at the trial against the manufacturers, which would involve issues relevant to the claims against the prescribers, such as the side effects and addictive nature of the drugs and the state of medical knowledge about the drugs at the relevant time. In circumstances of such an extreme disparity, the comparison of the plaintiffs' potential gain and defendants' costs of litigation, was a relevant factor. The Court of Appeal was also of the view that whilst there were significant advantages to group actions, enabling plaintiffs to join together to bring a case which individually would never be possible, group actions must not be conducted in a way to do injustice to other parties. There would be injustice to the prescriber defendants in this case, who would be locked into extremely expensive litigation on a very large scale, despite being only contingent co-defendants in a small number of cases.        At the hearing on 26 November 1993 leave to appeal to the House of Lords was requested. The Court of Appeal rejected that application, saying that such an application would have to be made to the House of Lords itself.        Subsequently the House of Lords was petitioned for leave to appeal against the Order of the Court of Appeal. On 27 June 1994 the House of Lords rejected this petition.   B.    Relevant domestic law        There is no specific body of rules of the Supreme Court providing for special procedures in Multi-Party Actions.        Order 18 Rule 19 of the Rules of the Supreme Court 1981 states:        "19.   (1)    The court may at any stage of the proceedings      order to be struck out or amended any pleading or the      indorsement of any writ in the action or anything in any      pleading or in the indorsement, on the ground that -        (a)    it discloses no reasonable cause of action or defence,            as the case may be;        (b)    it is scandalous, frivolous or vexatious;or        (c)    it may prejudice, embarrass or delay the fair trial of            the action;or        (d)    it is otherwise an abuse of the process of the Court;        and may order the action to be stayed or dismissed or      judgment to be entered accordingly, as the case may be."        In addition to the powers under Order 18 Rule 19 the court also has an inherent jurisdiction to dismiss actions which it holds to be frivolous or vexatious or an abuse of process.   COMPLAINTS        The applicants complain that the striking out of their claims against the prescribers of the Benzodiazepine drugs, deprived them from receiving a fair and public hearing by an impartial tribunal, and as such constituted a breach of Article 6 of the Convention.   THE LAW        The applicants complain that as a result of the striking out of their claims against the prescribers of Benzodiazepine drugs they were deprived from access to court in violation of Article 6 para. 1 (Art. 6-1).        Article 6 para. 1 (Art. 6-1) of the Convention provides:        "1.    In the determination of his civil rights and      obligations or of any criminal charge against him, everyone      is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law. Judgment shall be pronounced publicly      but the press and public may be excluded from all or part      of the trial in the interest of morals, public order or      national security in a democratic society, where the      interests of juveniles or the protection of the private      life of the parties so require, or to the extent strictly      necessary in the opinion of the court in special      circumstances where publicity would prejudice the interests      of justice."        The Commission accepts that this case concerns civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) (see Eur. Court HR, H v. France judgment of 28 November 1989, Series A no. 162, p. 20).        The Commission recalls that Article 6 para. 1 (Art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal (see Eur. Court HR, Golder v. United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, para. 36 and Ashingdane v. United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24, para. 55). However the Commission notes that the right of access to a court is not absolute (see Eur. Court HR, Golder v. United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, para. 38).        Limitations on the right of access to court are permitted, due to the fact that the right of access:        "by its very nature calls for regulation by the State,      regulation which may vary in time and in place according to      the needs and resources of the community and of      individuals." (see above mentioned Golder judgment, p. 19,      para. 38 quoting the "Belgian Linguistic" judgment of      23 July 1968, Series A no. 6, p. 32, para. 5).        The Commission recalls that the Contracting States enjoy a margin of appreciation in laying down regulations restricting access to court.        However, notwithstanding the national authorities' margin of appreciation, any restriction on access to courts must not be such that the very essence of the right is impaired. The restriction must have a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see above-mentioned Ashingdane v. United Kingdom judgment of 28 May 1985, Series A no. 93, para. 59).        The Commission notes that in the present case the applicants did initially have access to bring their claim to the High Court, and proceedings were issued against the prescribers. However under domestic procedure the applicants' claims were struck out by the High Court. This strike out took place after there had been an oral hearing at which the applicants were represented by counsel; further, the applicants were able to and did appeal against the decision. There was an oral hearing before the Court of Appeal, at which the applicants were again represented by counsel. The Court of Appeal upheld the ruling of the High Court that the claims against the prescribers be struck out. Thus to this extent the applicants did have access to court.        With regard to the striking out of the applicants' claim, the Commission notes that the continuance of the claim against the prescribers would have locked the prescribers into extremely costly litigation, quite out of proportion to the likely damages that could ever be recovered against them by the applicants. The Commission further notes that the applicants were involved in multi-party litigation, which gave them significant advantages by working together and pooling resources against the principal defendant (the manufacturer), and that the claim against the prescribers was at most a contingent claim of limited value, to be pursued only, if at all (given the limited value of the claim and the realities of the legal aid position), if the principal claim against the manufacturers failed. Despite the striking out of their claims against the prescribers, the applicants' claims against the manufacturers in respect of the same damages remained in existence. Thus the striking out did not deny the applicants from pursuing damages but merely restricted them to suing only the manufacturers of the drugs, whom the applicants themselves considered as the principal defendants. In these circumstances the Commission concludes that the decision by the national authorities to strike out the applicants' claims against the prescribers, largely on the basis of economic expediency, was a legitimate restriction which did not impair the essence of the right to access to court.        In view of all the circumstances, the striking out of the applicants claims does not disclose any appearance of the impairment of the very essence of the applicants' "right to court" or a transgression of the principle of proportionality.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber                                     A N N E X         Applicant              Nationality       Date of birth     Domicile   1.     ALFORD Geraldine       British           not given         Hillingdon 2.     ASHDOWN Michael        British           01.12.1936        Ringmer 3.     BRAMHALL Donald        British           03.06.1921        St. Helens 4.     CASSIDY Chloe D.       British           01.06.1945        Cornwall 5.     CASTANOS Mary E.       British           19.05.1928        Littlehampton 6.     CLARENCE William       British           18.12.1936        Prestwich 7.     CLARK Bernard R.       British           19.06.1928        Kingswood 8.     COCKSHOTT Lilian       British           31.12.1930        Middleton 9.     DEMPSEY Elsie          British           16.11.1940        Wythenshawe 10.    DOUBTFIRE Elsie E.     British           21.08.1942        Tyne & Wear 11.    ELLIS James G.         British           05.11.1947        Wigan 12.    FRAIS Betty P.         British           19.06.1933        Manchester 13.    FRENCH James           British           26.09.1946        London 14.    GEU Margaret           British           09.01.1925        Liverpool 15.    GORMAN Francis         British           26.08.1938        Reading 16.    GRAY Glynis J.         British           08.08.1948        Enfield 17.    GRIFFITHS Ann V.       British           10.08.1938        Cheetham 18.    HAMBLETT Mark          British           02.08.1957        Birmingham 19.    GRANT-HANLON Terence   British           12.07.1951        Liverpool 20.    HARRISON Peter G.      British           09.12.1954        Cobham 21.    HOLMES Christine G.    British           30.12.1949        Grasmoor 22.    HOLT Kathleen          British           01.03.1941        Birmingham 23.    HUGHES Ann J.          British           27.08.1939        Huddersfield 24.    HUGHES Robert A.       British           18.10.1947        Clwyd 25.    INGRAM Delcia R.       British           08.08.1932        Estover 26.    KAY Jennifer E.        British           24.02.1944        Rochdale 27.    KENNEDY Peter E.       British           27.06.1947        Rotherham 28.    LAIDLER David          British           11.08.1952        Tyne & Wear 29.    TAMS(LOWE)Barbara A.   British           20.08.1952        Stoke-on-Trent 30.    MACGUGAN Duncan        British           27.10.1933        Cronton 31.    McCOURT June           British           15.02.1944        Washington 32.    MEEKS John A.          British           29.09.1938        Milton Keynes 33.    MERRIE Dudley          British           25.02.1941        Huyton 34.    MORGAN Gerwyn          British           18.02.1945        Treharris 35.    NICHOLLS Jean          British           04.08.1944        Rochdale 36.    NICHOLSON Irene M.     British           14.08.1938        Northwood 37.    OATES Edith            British           18.11.1942        Carlisle 38.    PEARCE Phyllis M.      British           07.11.1948        Birmingham 39.    REED George            British           04.05.1924        Tyne & Wear 40.    RICHARDSON James A.    British           01.10.1939        Hanley 41.    ROGER'S Lillian G.     British           04.03.1928        Chatham 42.    ROUNDHILL Betty        British           25.02.1928        Hull 43.    SCHOLEG John D.        British           13.06.1944        Batley 44.    SCOTT Getrude E.       British           01.07.1918        Cliftonville 45.    SCOTT Kathleen         British           14.11.1947        Darwen 46.    SERRET Bernadette M.   British           05.12.1947        London 47.    SERRET Sylvia T.       British           22.09.1919        Stratford 48.    SHAW Karen R.          British           08.04.1942        Chadderton 49.    THOMPSON John J.       British           03.03.1931        Southport 50.    TRUMAN Lorna           British           16.06.1950        Bramcote 51.    TWIGG Kathlene         British           29.08.1940        Whiston 52.    WALKER Rita C.         British           27.09.1952        Hull 53.    WARCHALOWSKI Witold    British           20.11.1920        London 54.    WATSON Brenda          British           18.05.1933        Sutton on Sea 55.    WELLS Valerie W.       British           20.06.1939        Gillingham 56.    WHARMBY Peter B.       British           27.06.1951        Oldham 57.    WILBOURNE Jean         British           25.04.1925        Grassmoor 58.    WILLIAMS Wesley C.     British           07.10.1947        Derby