BENZODIAZEPINE TRANQUILLISERS
EXTRACT FROM THE APPLICATION
TO THE EUROPEAN COMMISSION OF HUMAN RIGHTS
COUNCIL OF EUROPE, STRASBOURG, FRANCE
AB AND OTHERS
~v~
UNITED KINGDOM
(HIGH CONTRACTING PARTY)
Prepared by
ANDREW BUCHAN (BARRISTER)
HENRIETTA HILL (BARRISTER)
27th January 1998
1. The applicants are represented by Philip Leach (Solicitor) of Liberty (The National Council for Civil Liberties), 21 Tabard Street, London SE1 4LA. This application has also been prepared by Andrew Buchan (Barrister) and Henrietta Hill (Barrister) of Cloisters, 1 Pump Court, Temple, London EC4Y 7AA.
2. The applicants have all suffered extremely serious personal injuries as a result of being prescribed addictive Benzodiazepine tranquilliser drugs. They were all plaintiffs in multi-party litigation against two companies which manufactured the drugs. This application to the European Commission of Human Rights arises out of the striking out of their case by the UK courts after the withdrawal of legal aid funding from their case.
3. There are no specific procedural rules under UK law for dealing with multi-party actions such as the applicants' case. The applicants contend that the UK courts erred in principle in extending the centuries-old rules beyond those which have developed to deal with ordinary unitary actions (i.e. those with less than ten plaintiffs). Their cases had all been adjudged to have legal merit, either by a Legal Aid audit or by an independent expert. Despite this, the cases were struck out, in effect, on the basis that they were too complicated, would not receive further legal aid funding and would therefore be unlikely to succeed and would cost the Defendant proportionally much more to defend the claim than the claim is worth. This meant that they were denied any hearing of the legal merits of their case at all. The English Courts effectively applied a cost-benefit analysis to the applicants' claims.
4. It is the applicants' case that the striking out of their case constitutes a violation of their rights under the European Convention of Human Rights. The applicants contend that the British justice system denied them access to a tribunal and failed to ensure there was "equality of arms" in their case, in violation of Article 6 of the European Convention of Human Rights. Further, they believe that the differential treatment they received in their access to a trial constituted unlawful discrimination in the enjoyment of their rights, in violation of Article 14 of the Convention. There is, for example, no rule against a Plaintiff suing an impecunious Defendant.
I: THE PARTIES
The Applicant
5. Please see the following:
(1) List of Applicants
(2) Individual Applicants' formal application forms and forms of authority appointing representatives as enclosed in Annex A.
The High Contracting Party
6. The United Kingdom.
II: STATEMENT OF THE FACTS
7. The facts in this case which are relevant to this application are as follows:
8. Benzodiazepines (tranquillisers) such as Ativan, Valium and Librium were widely prescribed in the UK from the early 1960s for a variety of medical conditions, such as muscle spasms, headaches, epilepsy, travel sickness, vertigo, nausea and insomnia, as well as for a variety of anxiety conditions. It has long been accepted on a world-wide basis that the drugs are "drugs of dependency" (addiction), which can lead to severe withdrawal symptoms following discontinuance. Benzodiazepines are also known to cause a huge range of side-effects including depression, fatigue, blurred vision and hallucinations, and possible disabilities in babies born to addicted mothers, among many others. (See attached documentation, in particular the Affidavit of Dr Reginald F Peart, dated 13th October 1995, at Annex B, tab 2(a), the 1988 Committee on the Safety of Medicines Bulletin and Roche advertisement, at Annex B, tabs 19 and 20).
9. The impact of benzodiazepines on many of the victims' lives was such that they were unable to work, their personal and social lives were affected and they suffered loss of personal and professional reputation. In many cases addiction followed immediately upon taking the first benzodiazepine tablet. Many victims developed dependency to benzodiazepines which may have contributed to their suicides. This was so widespread that it has been suggested that benzodiazepine addiction is second only to alcohol as a cause of suicide, as well as of deaths and injuries from road traffic accidents. The Council for Involuntary Tranquilliser Addiction (CITA) is a registered charity which provides help and practical advice to patients suffering from tranquilliser addiction.
Victims of Tranquillisers (VOT) is a pressure and lobby organisation which also supports those with medical and legal problems caused by benzodiazepines and other psychoactive drugs. (See attached documentation, Annex B, tab 21).
10. The applicants in this petition all suffered such addiction, side effects and adverse reactions as a result of taking benzodiazepines. In the late 1980s, they wished to initiate legal proceedings against John Wyeth and Brother Ltd. ("Wyeth"), the manufacturers of Ativan, and Roche Products Ltd. ("Roche"), the manufacturers of Valium and Librium. The basis of the proposed litigation was evidence that the defendants had known of the side effects and adverse reactions to the drugs and had knowingly severely restricted this knowledge in the UK. Proceedings were also subsequently commenced by many litigants against the prescribers of the drugs, both General Practitioners and Health Authority Consultants.
11. Legal Aid was granted for generic research, that is, research common to all the parties, in 1987. The plaintiffs were encouraged by the Law Society (the body which regulates the conduct of Solicitors in the UK) to set up a Steering Committee of Solicitors to co-ordinate the proceedings on behalf of the Plaintiffs. Representative Solicitors were elected on to the Steering Committee in March 1988. It was directed that the ensuing litigation should operate as a multi-party group action.
12. On 6th May 1988, a letter before action was sent to the first defendant, Wyeth. A similar letter was sent to the second defendant, Roche, on 14th March 1989. Draft statements of claim were delivered in respect of Ativan and Valium on 5th January 1990 (see attached amended statement of claim with regard to Wyeth, at Annex B, tab 1). In December 1990, a High Court Judge, Mr Justice Ian Kennedy ("Kennedy J") was nominated to supervise the litigation. On 4th July 1991, he imposed a cut-off date of 24th September 1991 (later extended to 3rd November 1992) for entry of plaintiffs into the litigation.
13. More than 12,000 plaintiffs were granted Legal Aid, of which approximately 5,000 commenced proceedings. The failure to issue proceedings was, in many cases, nothing to do with concerns about the merits of cases, but was a consequence of the cut-off points imposed by the Court and the long waiting-lists of the appropriate case experts. By mid-1992 the Legal Aid Board became concerned at the potential scale of the litigation, and so they initiated an "audit" to assess the viability of each case.
14. The audit was actually based on less than 4% of the original claimants, relied on opinion by counsel which was stated to be "provisional" and only took account of general damages (that is, those for pain and suffering) and did not fully account for the victims' "special damages", (that is, out-of-pocket expenses such as loss of earnings to the date of trial). It was carried out by a Steering Committee in a way that was less thorough than ought to have been the case because of the refusal of the Legal Aid Board to pay a figure to Counsel, instructed for the audit, that reasonably reflected the amount of time required and the complexity of the cases. (For further details of the inadequacy of funding for the audit, see attached letters from Mr Peter Griffiths, dated 9th February 1993 and 27th May 1993, at Annex B, tab 17).
15. On 23rd October 1992, the claims which had been brought against the Health Authority prescribers of the drugs were struck out by Kennedy J. The claims against General Practitioner prescribers were then struck out on 15th March 1993.
16. In January 1993, Legal Aid funding was withdrawn from all the Roche plaintiffs. This occurred despite the fact that by having survived the Legal Aid audit, many cases such as that of one Mrs Newton (represented throughout by Roger Wicks, a Solicitor), were implicitly regarded as having legal merit. In February 1994, the Legal Aid Board refused further Legal Aid funding in the Wyeth actions. The plaintiffs appealed, but these appeals were finally dismissed by the Area Committee on 1st November 1994.
17. After orders on 27th April 1994 and 24th January 1995 to the effect that plaintiffs had to give notice of their intention to proceed, 39 plaintiffs remained against Wyeth and 31 against Roche. These included all the current applicants to the Court. Wyeth applied to dismiss the remaining actions against them on the grounds that they were an abuse of the process, alternatively that they were frivolous, vexatious or otherwise bound to fail, and in the further alternative, that they be dismissed under the inherent jurisdiction of the court. They also contended that there had been inordinate and inexcusable delay such as to make fair trial impossible.
18. Roche applied for and obtained from a Master of the High Court, Master Prebble, on 20th February 1995 an order that the remaining actions against them be dismissed as constituting an abuse of process. The plaintiffs appealed this decision, arguing that the Legal Aid Board's decision to withdraw support had been engineered by the two defendants who had unreasonably insisted upon the examination, formulation and pleading of the individual cases to the point where the cost to the Legal Aid Board had led to their abandoning the litigation. Roche cross-appealed against Master Prebble's refusal to find in their favour on the second ground, namely that the plaintiffs had been guilty of inordinate and inexcusable delay. (See attached affidavit of Dr Reginald Peart, dated 13th October 1995, Annex B, tab 2(b)).
19. On 19th July 1996, Kennedy J held that the actions against both defendants should be dismissed as an abuse of process (see attached order, Annex B, tab 5). He held that the case was so complicated both medically and legally that it required medical and legal expertise to be conducted successfully. He found that the Plaintiffs did not (since the withdrawal of Legal Aid) have access to such expertise and therefore their cases were doomed to fail. He held that if the litigation continued, it would cost the Defendants far more than the Plaintiffs could ever hope to recover. Roche's cross-appeal was also allowed, on the grounds that there had been inordinate and inexcusable delay. The plaintiffs appealed.
20. On 13th December 1996, the Court of Appeal dismissed the plaintiffs' appeal, confirming that the cases should be struck out for abuse of process (upholding Kennedy J) and declining to deal with the issue of dismissal for want of prosecution (reported at [1997] 8 Med LR 57, see Annex B, tab 6). The Court held that once Legal Aid was withdrawn, the complexity of the issues (both medical and legal) in the case was such that the unrepresented Plaintiffs could not possibly continue their cases. The Court stressed that in group litigation the court may have to apply the principles of abuse of process to avoid injustice in circumstances which differ materially from those where one or only a few are litigating. The Court acknowledged the realities of the legal and factual complexities of the case:
"The judge had to deal with the problem which existed. The reality is this: this litigation could not possibly be conducted without the assistance of experienced counsel and solicitors....The plain fact is, as the judge has recognised, that without funding there was no prospect whatever of this case even being brought to trial, let alone to a successful outcome for the plaintiffs...". (emphasis added)
21. The Court of Appeal (at page 65, column 1-2) concurred with the view of Kennedy J that:
"...the withdrawal of Legal Aid means that there was no effective means of progressing the actions...In the absence of realistic proposals for representation and prosecution of the actions, the judge was justified in thinking that [the case]...would not and could not be brought to trial"
22. It held that delay and prejudice to the defendants, while unlikely to constitute sufficient grounds alone for striking out, could be taken into account in determining whether there had been an abuse of process or whether the court should utilise its inherent jurisdiction to strike out. Despite the dicta by Brooke LJ that,
"It is in no way the fault of these applicants, whose cases all passed the audit process, that that process took such an inordinate length of time once it was discovered that so many of the claimants had cases which ought never to have been brought...",
the Court did not accept counsel's submissions that to strike out before the making of "unless orders" was premature.
23. The Court of Appeal held that the judge was entitled to take into account the fact that Legal Aid had been withdrawn in deciding whether to dismiss their case for abuse of process. The issue of Legal Aid was relevant (per Stuart-Smith LJ) for two reasons:
(i) that it had been made as a result of advice to the Legal Aid Board from experienced leading counsel that continued Legal Aid was unreasonable;
and
(ii) that there was no effective means of progressing the actions.
24. The "prescribers' case" was eventually appealed to the European Commission on Human Rights. The Application, No. 26475/95, Afford v UK, was declared inadmissible on 9th April 1997. (See the copies of the Application and the Admissibility Decision, Annex B, tabs 9 and 10). The case was declared inadmissible on the basis that the plaintiffs still had the extant claim against the manufacturers (Roche and Wyeth) to pursue. Such a consideration does not therefore apply to the manufacturers' case as the plaintiffs now have no other remedy under UK law.
25. On 31st July 1997 leave for the Plaintiffs to appeal to the House of Lords was refused (see the Petition at Annex B, tab 7 and the refusal of leave at tab 8).
CHRONOLOGY OF THE BENZODIAZEPINE LITIGATION
1960s: Benzodiazepines introduced into the UK.
1987: First proposed Plaintiffs instructed Solicitors to seek damages for the injuries allegedly caused by the ingestion of Benzodiazepines.
March 1988: Representative solicitors elected on to a Steering Committee.
6th May 1988: Letter before action sent to the first defendant, John Wyeth and Brother Ltd., manufacturers of Ativan.
14th May 1989: Letter before action sent to the second defendant, Roche Products Ltd., manufacturers of Valium and Librium.
5th January 1990: Draft master Statements of Claim delivered in respect of Ativan and Valium.
December 1990: Mr Justice Ian Kennedy nominated to supervise the litigation.
4th July 1991: Kennedy J imposed a cut-off point of 24th September 1991 (later extended to 3rd November 1992) for entry of plaintiffs into the litigation.
More than 5,000 plaintiffs were granted Legal Aid.
Mid-1992: Legal Aid Board realise that a large number of certificates had been granted to claimants whose cases, for various reasons, were not viable. Legal Aid Board audit undertaken.
January 1993: Legal Aid funding withdrawn from all the Roche plaintiffs, including those who had been successful in the Legal Aid Audit. Claims against the prescribers of the drugs struck out.
February 1994: Legal Aid Board refuse further Legal Aid to all Plaintiffs in the Wyeth actions.
20th February 1995: Order of Master Prebble that the remaining actions against Roche be dismissed as constituting an abuse of process.
April 1995: Kennedy J. adjourns Wyeth's application to dismiss the remaining actions against them and couples it with the appeal and cross-appeal from Master Prebble's order on Roche's summons.
October 1995: Kennedy J adjourns again for three months to give the Plaintiffs an opportunity to provide practical plans for the future conduct of the litigation.
12th July 1996: Kennedy J dismisses the plaintiffs' appeal and allows the defendants' application. The actions are struck out as an abuse of process and Roche's cross-appeal is allowed, on the grounds that there had been inordinate and inexcusable delay. The plaintiffs appeal.
13th December 1996: Court of Appeal dismiss the plaintiffs' appeal, confirming that the cases should be struck out for abuse of process and dismissed for want of prosecution.
9th April 1997: The "prescribers case" is declared inadmissible by the European Commission on Human Rights.
31st July 1997: Leave for the Plaintiffs to appeal to the House of Lords is refused.
ANDREW BUCHAN
HENRIETTA HILL
27th January 1998
Cloisters
1 Pump Court
Temple
London
EC4Y 7AA
England, UK
Benzodiazepine Litigation
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