England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 96/1303-1337/D

(MR JUSTICE IAN KENNEDY )

Royal Courts of Justice

Strand

London WC2

Friday 13th December 1996

B e f o r e:

LORD JUSTICE STUART-SMITH

LORD JUSTICE ALDOUS

LORD JUSTICE BROOKE

AB AND OTHERS Appellants

v.

JOHN WYETH AND BROTHERS LIMITED Respondents

and

AB AND OTHERS Appellants

v.

ROCHE PRODUCTS LIMITED Respondents

(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD Tel: 0171 831 3183

Official Shorthand Writers to the Court)

MR ANDREW BUCHAN (instructed by Messrs Gadsby Wicks, Chelmsford, Essex) appeared on behalf of the Appellants (Plaintiffs).

MR MICHAEL SPENCER QC and DR MICHAEL J POWERS QC (instructed by Messrs McKenna) appeared on behalf of John Wyeth and Brothers Limited.

MR ANDREW PRYNNE QC and MR CHARLES GIBSON (instructed by Messrs Davies Arnold Cooper) appeared on behalf of Roche Products Limited.

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE STUART-SMITH: This is an appeal brought with the leave of the judge from the judgment of Ian Kennedy J. given on 19th July 1996 in which he struck out group actions against John Wyeth & Brother Ltd. (Wyeth) and Roche Products Ltd. (Roche). The judge struck the actions out both on the basis that there was an abuse of the process of the court and for want of prosecution. Although at one time there had been more than 5,000 writs issued against the defendants, by the time the matter came before Kennedy J. there were only 70, 39 against Wyeth and 31 against Roche. There are now 16 appellants in the Wyeth action and 20 in the Roche action who have served notice of appeal.

The litigation was known as the Benzodiazepine litigation. Benzodiazepine drugs were introduced in the 1960s. They were available on prescription only. They were usually prescribed for anxiety problems until about 1988. A number of claimants alleged that they had suffered injuries as a result of taking Benzodiazepines; although claims were made against other manufacturers in respect of other drugs of the Benzodiazepine class we are concerned in the main with two: Ativan, manufactured by Wyeth, and Valium, manufactured by Roche.

I must briefly set out the history of this litigation. In March 1988 a Steering Committee of representative solicitors was elected to prosecute the Benzodiazepine litigation. On 6th May 1988 a letter before action was sent to Wyeth and on 14th March 1989 one was sent to Roche. Legal aid was granted. On 5th January 1990 a draft master statement of claim was delivered in respect of Ativan and Valium. The litigation was entitled in the name of a mythical plaintiff AB. The court's control of the litigation began in June 1990 with the appointment by Lord Lane CJ of Kennedy J. to monitor the progress of the actions. In November 1990 Kennedy J. gave inter-alia the following directions: the Benzodiazepine scheme was defined; master statements of claim were to be served in seven days; individual statements of claim were to be served within six weeks of service of the writ; plaintiffs were to serve medical reports with the statements of claim and authority for release of medical records. The defendants were to serve commentaries on the master statement of claim; time for service of defence was extended.

Master statements of claim were served and the defendants served commentaries on them. In essence the case against both defendants is that Ativan and Valium are addictive drugs, that this is something which should have been known to the defendants from at least the 1970s and that they failed to give any or any adequate warning to prescribers against the long term use of the drugs or against their sudden withdrawal. Sudden withdrawal was likely to give rise to unpleasant symptoms. Reference is made in the master statements of claims to large amounts of medical and scientific papers and there are allegations of inadequate testing before the drugs were marketed or continuation of their marketing. In essence the case was based upon the complaint that those who took the drug become dependent upon it.

The judge had been greatly concerned to apply cut-off dates for claimants to be included in the group litigation. Essentially there were two such dates: first, a date by which the claimant was to apply for legal aid and secondly, assuming that legal aid was granted, the date by which the writ in the action was to be served. This was essential to the proper control of the litigation for a number of reasons: first, it was important that there should be enough claims to justify proceeding with the group litigation. Litigation of this kind is extremely expensive and frequently the damages recoverable are only modest. But if there are a large number of such claims, it makes economic sense for all plaintiffs to join together to prosecute, with the assistance as a rule of legal aid, an action which individually or in small numbers they could not possibly do. Secondly, it is important to have a sufficient pool of cases from which lead actions can be drawn so that the relevant issues can be determined and the decision in those cases will bind other cases. Thirdly, it is important for the defendants to know the extent of the claims against them. In the course of a number of directions hearings the judge imposed cut-off dates; but on several occasions he was obliged to extend them. This was largely because of the dilatoriness of claimants and their solicitors making applications for legal aid. But there was also delay in processing the claims. Although a large number of psychiatrists were employed, they were swamped with the work. Eventually the judge ordered a final cut-off date for service of writs as 31st August 1992, though he subsequently varied this so that those proceedings served in proper form by 3rd November 1992 should be deemed to have been served by 31st August. By this time some 5000 legal aid certificates had been issued.

By mid-1992 it was becoming apparent to the Legal Aid Board that, despite the requirement that each application had to be supported by counsel's opinion, a large number of certificates had been granted to claimants whose cases, for various reasons, were not viable, usually because they were not supported by medical opinion or the necessary causal link obviously could not be established. This was quite apart from the overall difficulty of establishing liability on the master statements of claim.

The Legal Aid Board therefore instituted an audit of the pleaded cases with a view to assessing the viability and merits of individual cases and of the litigation as a whole. In January 1993, during the currency of this audit the Legal Aid Board withdrew funding from the Roche plaintiffs.

At this stage a further development should be mentioned. In a number of cases the prescribers of the drugs, whether general practitioners or consultants in the employment of the health authorities, were sued in addition to the manufacturers. The Steering Committee made plain that these claims were in the alternative to those against the manufacturers and would only be pursued in the event that the primary case failed. This was not surprising since the plaintiffs' primary case was that the manufacturers had not given proper warning of the risks to the prescribers; had they done so and had the warnings been heeded (as the plaintiffs maintained they would have been) the adverse consequences would have been avoided. In October 1992 Kennedy J. struck out the actions against the health authorities as an abuse of process. In January 1993 he did the same with the actions against the general practitioners. These decisions were appealed, but upheld by this court in AB and Others v. John Wyeth & Brothers Ltd [1994] 5 Med LR 149 on 26th November 1993, which I shall refer to as the "prescriber's case" a decision to which I shall have to return later.

In the meanwhile despite the audit Wyeth considered that a number of cases which had passed audit were so weak that they should be struck out. Four were discontinued when summonses to strike out were issued. The other two, which were contested, were struck out by Kennedy J.

In January 1994 the Legal Aid Board required the Wyeth plaintiffs to show cause why their certificates should not be discharged. On 14th February 1994 the Board notified the court that further public support in this litigation against Wyeth could not be justified. Although there were appeals from this decision, the Area Committee of the Legal Aid Board finally dismissed the plaintiffs' appeals on 1st November 1994. Both defendants obtained orders that the plaintiffs who were now acting in person and were not legally aided should give notice of their intention to proceed, failing which their actions would be struck out. The Roche order was made on 27th April 1994; the Wyeth order on 16th Feb 1995. In the result 51 Roche plaintiffs gave notice of intention to proceed and 47 Wyeth plaintiffs.

In October 1994 Roche applied to Master Prebble to strike out the remaining action as an abuse of the process and for want of prosecution. The summons was heard on 14th December, but after a full day's hearing was adjourned to 20th February 1995 to enable the plaintiffs to put in further evidence. On that date Master Prebble dismissed the actions as an abuse of process, but not for want of prosecution.

On 23 February 1995 Wyeth applied to strike out the remaining plaintiffs against them. The application came before Kennedy J. first on 6th and 7th April 1995. It was adjourned on a number of occasions; first to 25th April when appeals by the plaintiffs in the Roche action were also heard. That was adjourned to 17th and 18th October 1995 and again to 6th and 7th February 1996. These adjournments were at the plaintiffs' requests.

At these hearings the number of plaintiffs had dwindled to 39 in the case of Wyeth and 31 in the case of Roche. Most of the plaintiffs were unrepresented; some appeared in person; many did not. Dr Peart, who is a plaintiff in the Roche Action and the leading light of an organisation called VOT (Victims Of Tranquillisers), addressed the judge and advanced arguments on behalf of the Roche plaintiffs. Mr Ross, who is a solicitor from Liverpool and was a member of the original Steering Committee, assisted the Wyeth plaintiffs and was allowed to address the court on a pro bono basis. He had also offered to act as a MacKenzie friend. It was not clear whether Mr Ross was properly instructed by any of the plaintiffs but nevertheless the judge had regard to his affidavit evidence and his submissions to the court. Additionally Mr Wicks, a solicitor, was instructed on behalf of Mrs Newton, a Wyeth plaintiff. He also served an affidavit and addressed the judge. Prior to the hearing of the summons and appeal and also after adjourned hearings, the judge had expressed grave concern as to how the litigation was to be progressed now that legal aid was withdrawn. In fact little or nothing had been done to progress the litigation since the Legal Aid Board began its audit in June 1992. There were outstanding proposed amendments to the master statement of claim; further and better particulars of the master statement of claim; the judge had not yet ordered a defence from Wyeth (although they had served a commentary which indicated the very substantial nature of the defence). There had been no discovery; no exchange of expert reports or witness statements. The judge granted adjournments with a view to enable the plaintiffs to produce a draft amended master statement of claim, proposals for representation for the plaintiff (it was suggested that Mr Ross might act on a conditional fee basis), and proposals as to how and when the various necessary steps to bring the action to trial should be taken.

Mr Ross appears to have misunderstood the judge's direction as to the production of a draft amended master statement of claim, although it seems to me to have been clear enough. The judge opined, understandably, that such misunderstanding did not augur well for any future conduct of this litigation. When a draft amendment was eventually produced, so far from limiting the extent of the enquiry as the judge had hoped and seems to have been led to expect, it greatly widened it. A number of additional matters were relied upon as constituting side effects or injuries resulting from the drug. More importantly it was alleged that the defendants' negligence dated back to the 1960s.

No satisfactory proposals were put before the judge in relation to the representation of the plaintiffs. An offer had apparently been made by Mr Ross to some plaintiffs on a conditional fee basis. The judge was not shown any written offer. He inferred that any offer had not been accepted, since Mr Ross was not on the record as appearing for any plaintiff.

Although Mr Ross did eventually put forward some proposals as to the future conduct of the action, the judge, rightly in my view, regarded them as hopelessly unrealistic.

The judge struck out the Wyeth actions both on the grounds that they were an abuse of process and for want of prosecution. He upheld the decision of Master Prebble that the Roche actions were an abuse of process; he allowed Roche's cross-appeal and held that the actions should be struck out for want of prosecution.

In recent years there have been substantial developments in the law relating to the court's inherent powers to strike out actions as an abuse of the process of the court. I can start with the statement in the speech of Lord Diplock in Hunter v. Chief Constable of The West Midlands Police [1982] AC 529 p.536 (tab 4).

"..this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise the salutary power."

Access to the courts is a fundamental right of everyone and a litigant cannot be driven from the judgment seat without good reason. But the right is not an unfettered one. As I pointed out in Ashmore v. British Coal Corporation [1990] 2 All ER 981 at 984G (tab 8).

"A litigant has a right to have his claim litigated, provided it is not frivolous, vexatious or an abuse of the process. What may constitute such conduct must depend on all the circumstances of the case; the categories are not closed and considerations of public policy and the interests of justice may be very material."

That was a case of group litigation before the Industrial Tribunal. There were 1500 female claimants who alleged that they were not being paid equal pay with male comparators. In order to deal with the case in a sensible way 14 cases were selected as sample cases so that all the points in issue could be determined. The appellant's was not one of those cases. When the sample cases had been decided against the claimants, the appellant sought to pursue her own claim. She contended that since the doctrine of estoppel per rem judicata or issue estoppel did not apply, because she was not a party to the actual sample decision and she had not agreed to be bound by the decisions in the sample cases, she had an absolute right to pursue her claim. This court held that it was contrary to public policy and the interests of justice and consequently an abuse of the process to permit the appellant to relitigate issues which had been determined in the sample cases and would defeat the purpose for which the tribunal had set up the scheme for managing the group litigation. The case illustrates how 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 persons are litigating. These principles were applied in this court in this litigation when we upheld the striking out of the actions against the health authorities and the general practitioner prescribers in the "prescribers case". In my judgment with which Balcombe and Peter Gibson LJJ agreed at p.152 I said:

"The court is concerned to see that its proceedings are not used in a way that is oppressive and vexatious to the other party or which involves serious injustice to him. If the court is satisfied that the proceedings do have that effect, it has power to strike out on the grounds that they are vexatious and abuse of process."

After referring to the cases of Hunter, Sovasundaran v. Julius Melchior & Co [1988] 1 W.L.R. 1394 and Talbot v. Berkshire County Council [1994] Q.B. 290 I said this:

"The principle in those cases is that it is contrary to public policy that the same issues should be relitigated, thereby wasting the time of the courts, running the risk of inconsistent verdicts and because it is vexatious to a defendant to have to face the same or similar issues twice, even where he may obtain an order for costs if the relevant litigation is unsuccessful: (see: Ashmore's case...). It is the effect on the courts themselves and the defendant that is important."

Then at p.153:

"In most cases it will be quite inappropriate for the court to enter upon the sort of cost benefit analysis which the judge undertook here. The court cannot weigh the plaintiff's prospect of receiving £1,000 against the defendants' costs of £10,000 which may be irrecoverable; that can only be done at the trial; alternatively it is a matter for the commercial judgment of the defendant whether he attempts to reach a settlement with the plaintiff: and in so doing he has to take into account as part of the equation that the plaintiff is legally aided or impecunious. But this case is quite different. One can see at a glance that the prescriber defendants will be put to astronomical expense in defending these contingent claims. And to what end? If the plaintiffs stood to obtain a substantial benefit, the position might well be different. But here the benefit is at best extremely modest, and in all probability nothing. That involves great injustice to the defendants. It is no answer that there are public authorities or insurance associations that are footing the bill. The National Health Service has better things to spend its money on than lawyers' fees and the costs of medical insurance is a matter of public concern. Group actions involve great advantage to plaintiffs, who are able to join together to bring actions which, on their own, would never be possible. But they must be conducted in such a way that they do not involve injustice to other parties. There are no rules of court specifically dealing with group actions. The judge to whom they are assigned can and should devise procedures to deal with the specific problems of the litigation before him. He will need to be inventive and firm if the trial and interlocutory proceedings are not to be unmanageable. In such litigation this court will be especially reluctant to interfere with the judge's exercise of his discretion, since he knows far more about the litigation than we can do. Far from being persuaded that the judge was wrong here, we are entirely satisfied he was right, for the reasons which he gave. We are concerned in these appeals with group litigation; the question whether, and if so, to what extent, these principles apply to non-group litigation, may have to be considered hereafter."

In his very full and careful judgment under appeal the judge dealt first with a submission that was made to him, that the defendants by their conduct of the litigation had engineered the withdrawal of legal aid. The contention was that, by insisting that each case should be pleaded with a statement of claim and supporting medical report, the costs of the litigation to the Legal Aid Board in investigating the individual cases was out of all proportion and diverted resources from the pursuit of generic issues and that of the lead cases. It is plain that if the judge had found the charge that the defendants had improperly engineered the discharge of legal aid, he would not have struck out the action. Since the judge's rejection of these submissions is contested in the 7th ground of appeal of the appellants other than Mrs Newton, I must refer briefly to the judge's reasons.

After reviewing the history of the actions at length and referring to some of the matters that had taken place on the many directions hearings - and the judge had re-read the transcripts of all these hearings before giving his reserved judgment - he gave his reasons at pages 280-281. I need only refer to the last reason that the judge gave, not because I do not agree with his other findings, but because in my view the last reason alone was sufficient to dispose of the submission. He said:

"But the ultimate point is that it was not for the defendants to insist on anything. The control of the litigation was in my hands, and I heard the arguments on each side and considered what best would lead as effectively as possible to resolutions of litigation. My rulings were tested, or sought to be tested, in the Court of Appeal on four occasions (and on other occasions appeals were proposed). Whilst it is true that the Court of Appeal is reluctant to adjust the controls imposed by a Judge in group litigation, there can be no doubt they would have done so if it could be shown that the effect of my order was to cause an unnecessary expenditure measured in millions.

The complaint that I have discussed, and the allied and unspecified charge that the defendants have failed to co-operate with the plaintiffs is, I fear an example of the tendentious and unsubstantiated allegations which are now being made. The question has to be asked, if 17,000 applications did not produce sufficient cases to meet Lord Donaldson's economic limit, what number could? It is common knowledge that with discovery the costs of any piece of litigation escalate exponentially. It would have been something for the strongest criticism if, with the generic trial over, it had turned out that there had never been the cases to meet the economic limit in the first place."

The criticism of the judge's conclusion on this point is quite untenable.

The judge summarised his reasons in concluding that the actions were an abuse of process at page 292. He said:

"Firstly, I take account of the conclusion of the Legal Aid Board upon the advice of experienced Counsel that neither the claims against Wyeth nor those against Roche met the reasonableness test to justify the Board's further support. Nothing has been put before me to persuade me that there was any error of substance on the part of Counsel advising the Board that would have invalidated the conclusion. Counsel had to advise in the light of the decisions and rulings in the action. Counsel's advice is no more than one factor that I have to consider.

Secondly, since this is group litigation I am to make my own assessment of its viability, as decided by the Court of Appeal in [the prescribers case]. The costs to the defendants of defending these claims will be enormous, and the costs of the generic work will become increasingly disproportionate as numbers fall. The amounts that individuals can hope to recover are in litigation terms modest indeed, and are certain to be further reduced by irrecoverable costs, in the case of those that have entered conventional fee arrangements by the success fee, and where the person was legally aided any recovery will be subject to the Legal Aid Board's charge. There is a serious issue on primary liability, and even with that decided in the plaintiffs' favour there will in many cases be limitation problems, and the other difficulties which I have already discussed in terms of state before ingestion, state under treatment, and the attribution of demonstrated complaints between the benzodiazepines and intercurrent causes and ingestion.

Thirdly, there remain the defects in the Amended Master Statement of Claim, reflecting as they do that three years after the Master Statements of Claim were first served the plaintiffs' side had not taken a final position on the nature of the adverse effects of ingestion. I refer here to the broad nature of the effects, and not to that of which particular symptoms pleaded individually are attributable to either drug. The amendments now proposed to the Amended Master Statement of Claim, if they were to be allowed, and I have not been asked to rule on that, would extend the enquiry. Most significantly by going back towards 1960 it will be the more difficult to show what the state of responsible opinion then was.

Fourthly, no structure is proposed effectively to re-unite the remaining plaintiffs. Only a minority are proposed to be represented by solicitors, and no plans are made for, let alone agreed with, the balance.

Fifthly, if I consider the practicalities facing the conditional fee plaintiffs, they are considerable, I am have shown. I do not have confidence that effective progress will be made. I have earlier said that it would be no kindness to these plaintiffs to allow the litigation to continue only to have it run into the sand.

Sixthly, I have said that it is a relevant factor that these actions would not have begun but for the support of the Legal Aid Board, and now it has been withdrawn. It is apparent that part of the motivation to continue with the claims is a perception that the plaintiffs have been badly treated by the Board.

Seventhly, the delay of which I have spoken brings its own prejudice, not merely fading memories as witnesses age but entails that the defendants have been under the threat of this litigation for much longer than was necessary.

Finally, where defendants have been faced with some 5,000 sets of proceedings, and certainly in the case of Wyeth have examined the majority of them, and thereafter that total has reduced to seventy, whether by striking out, discontinuance, the product of the audit or a decision not to continue with legal aid withdrawn, those defendants are justified in pointing to the pursuit of that small remainder as an abuse of process, certainly where they demonstrate no greater overall viability than these cases do."

Some of these reasons are criticised by the plaintiffs other than Mrs Newton. I will deal with these criticisms first.

In ground 2 of their notice of appeal it is said that the judge mistakenly allowed as a factor in his decision the fact that the Legal Aid Board, for its own reasons, withdrew its consent. The judge considered that he had to make his own assessment of the viability of the claims so that he could balance the prospect of worthwhile gain to the plaintiffs against the enormous unrecoverable costs likely to be sustained by the defendants in the event that the claims ultimately failed. He did this because this is what this court held that he should do in this kind of litigation. I have already cited the passage from my judgment in the "prescribers case" at page 153. The judgment continues:

"There are two further points to which we should refer. There was a good deal of evidence in the case of the general practitioner prescribers which pointed to difficulties faced by the plaintiffs in their actions. For example, in over 90 per cent of the cases there is a Limitation Act defence, which the plaintiffs will have to overcome by obtaining a direction under section 33 of the Limitation Act 1980 or showing that their date of knowledge was within three years of action brought. There are very considerable problems on causation; these involve distinguishing between the effects of the drug and the underlying condition for which it was prescribed, the problems caused by previous addiction to benzodiazepine drugs other than those prescribed by the defendants, and distinguishing between symptoms due to the drugs, or in some cases, other drugs or excess alcohol, and the fact that many plaintiffs may suffer at least some withdrawal symptoms in any event. There is the difficult question of balancing the benefit of the drug against the undesirable consequences of taking it. We accept Mr Scrivener's submission that the judge did not take these matters into account in reaching his decision. He did not need to do so because there was ample other material upon which he could act. But, in our judgment, he would have been entitled to take them into consideration had he wished to. This would not involve considering the merits of each individual case: that would have been quite inappropriate. But any judge experienced in this type of litigation, and especially Ian Kennedy J with his knowledge of these cases, would be able to appreciate that these considerations may present real problems in many if not all of the cases quite apart from the modest quantum of the claims if successful.

This is analogous to the exercise which a judge may have to undertake when considering under section 33 of the Limitation Act questions of the balance of hardship and whether it is equitable to allow the plaintiff's action to proceed. A plaintiff with a cast iron case on liability suffers greater hardship if his case is statute barred than one where there are difficulties in establishing liability. The judge does not try the matter on affidavit, but he can and should take an overall view of the merits of the claim: see ( Dale v. British Coal Corporation ..."

In making this assessment, in my judgment the judge was fully entitled to take into account the fact that legal aid had been withdrawn. It is relevant in two ways. First is the fact that very experienced leading counsel had advised the Board that the plaintiff no longer had "reasonable grounds for taking on the proceedings" and that it was "unreasonable that they should be granted representation" (see Legal Aid Act 1988 s.15(2) and (3)(a)). Even if this decision was taken on the basis that the actions are not economically viable having regard to the cost that would have to be expended compared with the return, it must lend support to the judge's own assessment of the viability of the claims with regard to the formidable difficulties faced in establishing both primary liability and causation. The judge had a good deal of evidence from Miss Ware and Mr Hickinbottom on these matters; and he had his own knowledge and experience of the case over six years. He dealt with these matters at length in his judgment and there is no need to do more than briefly refer to them. On liability the argument would have to go back to the 1970s (and if the amendment was allowed the 1960s; the process of discerning the state of scientific and medical knowledge many years in the past in the face of conflicting evidence is formidable and it is for the plaintiffs to discharge the burden of proof.

In appendix C of their skeleton argument counsel for Roche cite a number of quotations from the plaintiffs' experts in relation to the state of knowledge as to the dependency in the early 1980s. These reports suggest that there was no compelling evidence at that time that these drugs, which were regarded as highly effective and beneficial, were addictive, and what evidence there was, was anecdotal. The judge has to be on his guard against the wisdom of hindsight.

Throughout the material time drugs of this sort and the instructions that went with them were monitored by various independent committees and after the coming into force of the Medicines Act 1968 were subject to the licensing provisions made pursuant to the Act and the Act of 1978. The drugs were undoubtedly regarded as effective in treating anxiety problems. The benefit must be taken into account in the overall assessment of breach of duty. There is what the defendants describe as the problem of the "informed intermediary", that is to say the fact that the drugs were only taken on prescription; though this perhaps begs the question of how informed the doctor was.

So far as causation is concerned there were also likely to be formidable problems. Few if any of the plaintiffs had evidence from the general practitioners that they would have taken a different course if the defendant had given more adequate advice and warnings. Clinical experience is often a major reason for prescribing drugs. The symptoms alleged to be caused by Benzodiazepine addiction or withdrawal are not easily distinguishable from the underlying or endogenous condition that gave rise to the prescription. In those cases which Wyeth investigated, where they were able to trace the general practitioner concerned, there were marked discrepancies between the recollection of the plaintiff and the complaints and treatment recorded by the doctors. Not infrequently there were problems of alcohol or drug abuse, or the ingestion of other drugs which could cause similar symptoms. After 1985 when brand name drugs of this sort became a thing of the past in the NHS, there is the difficulty of proving that the drug ingested was manufactured by one of the defendants.

Secondly, the withdrawal of legal aid means that there was no effective means of progressing the actions. This is referred to in the judge's fourth and fifth reasons. There has been no progress whatever in either action since legal aid has been withdrawn. In the absence of realistic proposals for representation and prosecution of the actions, the judge was justified in thinking that litigation of this complexity would not and could not be brought to trial, let alone a successful outcome for the plaintiffs. I shall return to this point when I consider Mr Buchan's submissions.

In the third ground of appeal it is contended that the judge failed to provide a fair balance of factors in assessing the issues. By way of example he referred to the deduction from any recovery the amount of the success fee payable under any conditional fee basis and the Legal Aid Board charge without acknowledging that it had been estimated that the latter would be nominal and the former a small proportion of the total. This is not factually correct. In the context of the modest damages which were likely to be recoverable the judge was entitled to consider that the deductions would not be insubstantial. In truth there was no prospect of a conditional fee arrangement because the amounts recoverable by the plaintiffs could never support such a thing in such difficult and speculative litigation. Moreover the judge was entitled to have in mind other possible costs which might have to be deducted from a successful plaintiff's damages. For example the action might not succeed on all issues and the defendants might be awarded part of their costs on those parts on which they succeeded.

In ground 6 it is said that the judge allowed himself to be guided by inaccurate observation of the motivation of the plaintiffs. They had perceived that they had been badly treated by the Legal Aid Board, but it was the perception of the plaintiffs relating to poor treatment by the medical profession that was relevant. I think this must be a reference to the sixth reason that the judge gave at page 292. In my view the judge, with his great experience of this case, was perfectly entitled to reach the conclusion he did on this point. For my part I do not think it is a consideration that weighed heavily with him. But it is perhaps the counter part of the conclusion which he had already reached that there was likely to be small economic benefit to the plaintiffs even if they won.

The remaining grounds of appeal are covered by Mr Buchan's submissions. I turn to consider those submissions made on behalf of Mrs Newton, who is a plaintiff in the Wyeth action. Mr Buchan appeared for the first time in this court; he did so without fee and the court is very grateful to him for the assistance we derived from his submissions, some of which are personal to Mrs Newton, but others are of general application to all plaintiffs.

First, he submitted that the judge was in error in approaching the question in a broad overall context of the litigation; he ought, he submitted, to have considered each individual case on its merits. The group litigation has effectively collapsed and the plaintiff could not be deprived of the right to pursue her cause of action simply because the amount she was likely to recover was modest compared with the irrecoverable costs of the defendants should the action fail. Mrs Newton had been advised that her claim, including loss of earnings, which is only scantily pleaded, was worth £20,000, which, he submitted, was a substantial sum of money. For my part, having read the particulars of claim and medical report, I would have thought this was a very generous assessment in as much as without amendment of the master statement of claims it related only to withdrawal symptoms.

Mr Buchan submitted that Mrs Newton did not face the same problems on causation as some other plaintiffs because she took no other drugs at the time, she did not abuse alcohol and had a medical report that supported her claim in relation to withdrawal symptoms, though I observe that these are similar to the symptoms experienced before taking the drug and because of which it was prescribed. Mr Buchan also submitted that she might not have the same difficulties on limitation. But here again it seems to me that the primary limitation period may well have expired and she would require the exercise of the court's discretion under section 33 of the Limitation Act 1980. If this is so, authorities in this court show that, in balancing hardship to the plaintiff against hardship to the defendant, the court has to make an overall assessment of the plaintiff's prospects of success and the quantum of the claim, since a plaintiff with a good claim for a substantial amount suffers greater hardship if deprived of his cause of action through limitation, than one who has a weak claim or one for a small amount. Conversely a defendant suffers greater hardship if he has to continue to face a weak claim and incur very great irrecoverable costs, than he would if at the end of the day he was likely to be held liable; see Dale v. British Coal Board CA transcript 19th June 1992 and Forbes v. Wandsworth Health Authority [1996] 7 Med LR 175.

Alternatively Mr Buchan submitted that, if the judge was correct in adopting the broad group litigation approach that he did, he sought to distinguish this case from the "prescriber's case" on the facts, because in that case the claim against them was an alternative claim and the plaintiffs stood to gain little or nothing after irrecoverable costs and the Law Society's charge was set off against the damages. These are factual distinctions but in my opinion there is no distinction in principle if the judge was correct to regard this as still part of the group litigation and adopt the approach to such litigation which this court said was correct in the "prescriber's case".

In my view the judge was correct. Even if Mr Buchan is entitled to say - and in my view he is not - that Mrs Newton faced no difficulties on causation and limitation, the fact is that she could only have brought her action as part of the group litigation. She was legally aided until January 1995. She had the benefit of the £3 million or so spent by the Legal Aid Board in pursuit of the generic issues, especially liability. She would never even have been able to issue her summons without the support of the group and legal aid. Simply because 4930 cases have been discontinued or struck out, she cannot say, "you must judge my case as if I had got where I am by my own devices".

As the judge pointed out, it was the court that had created the framework of the group action - not the parties. His original order contains the provision that a plaintiff, once registered upon the register, should remain on it unless he served notice of discontinuance or was given leave to discontinue. I accept that the judge could have rescinded this order and dissolved the scheme if he had been asked to do so, and if in the interests of justice he had thought it right. But he was never invited to do so. On the contrary Mr Wicks on behalf of Mrs Newton continued to associate her case with the other plaintiffs. In my view it would have been quite inappropriate to take this course when there were 39 Wyeth plaintiffs before him, or the 16 who now remain. In any event even if her case is considered alone, she is still caught by the dilemma. If by some miracle funding were to be available for the case, having regard to the likely quantum of damages payable to her if successful - and the deductions from that would have to be taken into account by way of irrecoverable costs and legal aid charge - the judge would be perfectly entitled to conclude that the benefit to her was likely to be so small that it would be unjust in the circumstances of this case to allow the action to continue, involving, as it would, the defendants in enormous irrecoverable expenses if they succeeded. The judge rightly rejected the plaintiffs' contention that there was some legitimate purpose to bringing this action other than obtaining compensation. He properly distinguished the case of Joyce v. Sengupta [1993] 1 All ER 897.

Mr Buchan sought to rely on an analogy with the case of a multi-millionaire who wished to sue Wyeth. His damages might be only £20.000 but he might be prepared to pay the several millions required to bring the case to trial and face the risk of paying the defendant's costs if he was unsuccessful. Even for a very rich man this would be economic madness, but I agree that the court would probably not strike out his action. But the analogy is not helpful. Firstly, there would be no injustice to the defendants, or at least not of the same order, because if they were successful they could recover their costs against the plaintiff. Secondly, we do not know how Kennedy J. would have designed this group litigation if there had been such a plaintiff amongst the 5,000 who was prepared to go ahead with his own case, regardless of other plaintiffs and regardless of cost. The judge might well have ordered it to be a test case on liability and stayed all other actions in the belief that if the defendants succeeded that would be the end of the litigation; if they failed, many cases might be settled.

The judge had to deal with the situation which existed. The reality is this: this litigation could not possibly be conducted without the assistance of experienced counsel and solicitors; so much Mr Buchan accepts. Although most generously he and his solicitor are appearing without fee in this appeal, it is quite unrealistic to suppose that any solicitor or counsel could act without fee for the years of preparation still needed before trial or the three-month trial which the judge thought was the minimum. Then there are expert witnesses; so far they have been paid by the Legal Aid Board. There is likely to be need for experts from several disciplines. They cannot all be expected to appear for nothing and their fees are likely to be very substantial. There is no realistic possibility of a contingency fee here; the damages will be too modest.

The plain fact is, as the judge 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; and this is so whether Mrs Newton proceeds on her own or in conjunction with the 15 other Wyeth plaintiffs. In my judgment once the judge has reached this conclusion, coupled with the conclusion that there was no prospect of funding, he had no alternative but to strike the action out.

Mr Buchan submits that to strike the action out as an abuse of process is premature. What the judge ought to have done was to make "unless" orders in respect of the outstanding steps that needed to be taken, such as amendment of the master statements of claim and service of further and better particulars. Mr Buchan recognised that there was a high probability that these "unless" orders would not be complied with. But, he said, the plaintiff should be given a chance; if she failed, then the action could be struck out for want of prosecution.

I cannot agree. Once it is apparent to the judge that the case cannot be brought to trial, it is his duty not prolong the agony any longer. He must put a stop to further needless expense and strike the action out. Moreover I think that in substance this is what the judge did when he adjourned the hearing on several occasions to enable the plaintiffs to put their house in order. It was implicit in his action that if they did not, the proceedings would be struck out.

To my mind, subject to Mr Buchan's point on the European Convention, once the judge had found as a fact that the litigation would not be progressed without the assistance of professional help from both lawyers and expert witnesses, and that there was no prospect whatever of such assistance being forthcoming, he was bound to strike it out. The judge gave the plaintiffs every opportunity to try and obtain alternative means of progressing the action. Although he must have realised the prospect was a forlorn one, it cannot be said that he did not give them every chance. His findings, in my judgement, are unassailable.

Mr Buchan's other main submission on this aspect of the case was that, in striking out the plaintiffs' action as an abuse of process for the reasons which he gave, there was a breach of Article 6(i) of the European Convention of Human Rights 1950.

This provides:

"In the determination of his civil rights and obligations... everyone is entitled to a fair and proper hearing within a reasonable time by an independent tribunal established by law."

While recognising that the Convention is not part of English Law he submitted that, when considering the court's inherent jurisdiction, the court should have regard to the United Kingdom's treaty obligations. In support of this submission he sought to rely on Regina v. Secretary of State for the Home Department, Ex parte Brind [1991] 1 AC 696. In that case, besides confirming that the Convention is not part of English Law, the House of Lords held that, where there was ambiguity in the construction of United Kingdom primary or secondary legislation, regard should be had to the Convention as an aid to construction, the assumption being that Parliament intended to legislate in accordance with, and not contrary to, the United Kingdom's treaty obligations. In my judgement the case does not assist in determining the scope of the court's inherent power to prevent proceedings being an abuse and instrument of injustice, or the circumstances in which that power is exercised.

Mr Buchan also referred to the case of Airey v. Ireland [1979] 2 E.H.R.R. 305. In that case the applicant sought to petition for judicial separation in the Irish High Court. She did not have the financial means to employ lawyers and no legal aid was available to pursue this remedy. The action was too complex and difficult for the applicant to pursue as a litigant in person. The European Court of Human Rights held that, in the absence of legal aid and because the plaintiff could not pursue the remedy in the absence of legal assistance, there was a breach of Article 6(i).

Mr Buchan seeks to argue on the authority of this case that legal aid should have been made available for Mrs Newton and the judge should, in some way that I have not followed, have ensured that it was available. I cannot accept this submission. Legal aid was available to the plaintiffs and all of them had the benefit of it until it was withdrawn. If it was improperly withdrawn, the plaintiffs' remedy was to seek judicial review. Although it seems that that course was considered, it was not pursued. This is not surprising. It is for the Legal Aid Board acting under the provisions of the Legal Aid Act 1988 to determine whether a plaintiff should be granted and continue to have legal aid; it is not for the court. Except in judicial review proceedings the court has no jurisdiction over the Board.

The logical conclusion of Mr Buchan's submission is that every case which cannot be struck out on the basis that it discloses no cause of action or is frivolous or for want of prosecution ought to enjoy legal aid, at least if it is sufficiently complex that the plaintiff cannot conduct it in person. Although judges in this court not infrequently wish that there was compulsory legal representation for all litigants before it, that is not the position.

Finally I must deal with a number of discrete points which Mr Buchan makes on this aspect of the case. First, he submits that the court should not embark on the consideration of a cost/benefit analysis that the judge undertook in the case following the judgments of this court in the "prescribers case" for two reasons.

1. That it would encourage defendants in this sort of action to run up massive interlocutory costs so that the time would inevitably come when the costs outweighed all possible benefits and the Legal Aid Board would take fright at the escalating cost of the litigation compared with the benefit and consequently withdraw funding. As I have already pointed out if the judge, who said he was well aware of the danger, had found that this is what the defendants were deliberately doing, he might well not have struck the action out. But that was not established on the facts.

2. The defendants in this type of case might settle a number of cases and then, when the number of plaintiffs was reduced to a numerically weak level so that the benefit to them would be small compared to the cost of litigation, they could apply to strike out the rest. I do not accept that this is so. If a defendant is shown to have settled a like case by a substantial payment, the court would be entitled to take the view that similar cases were equally viable. I emphasise the word "like" because in this type of case, with increasing medical and scientific knowledge over a period of time a defendant may properly take the view that by a certain time, but not before, there is a reasonably strong case that there was a breach of duty. He may therefore wish to settle later cases, but not earlier ones. Or there may be other valid distinctions, for example on causation. But that is not the case. The defendants have settled no case here.

Secondly, Mr Buchan submitted that since over the years the defendants had succeeded in striking out cases that they considered particularly weak, that is the course they should take. If they did not feel able to do that, there should be no wholesale strike-out. I do not agree. We do not know why certain cases were struck out, but I assume it was because they disclosed no reasonable cause of action or were frivolous.

Since it was inappropriate to take the date of issue of writs or summonses in individual actions as the inception of the group action, the judge took November 1990 as the relevant date for the start of the proceedings, this being the date of his first order for directions setting up the Benzodiazepine litigation. He then identified two periods of delay. The first was from the summer of 1992 until early 1993, so far as the Roche case was concerned, and until the end of 1994 in the case of Wyeth. The periods coincided with the Legal Aid Board audit. The judge said:

"They are inordinate, and they are inexcusable for the very reason that they should have been avoided by proper controls at the point of entry. No proper excuse can be offered for the plaintiffs failing to re-organise themselves once legal aid was withdrawn: on the overall picture matters drifted."

The second period of delay was from the withdrawal of legal aid until the defendants' summons to strike out. In the Roche case this was from January 1993 to October 1994; in the Wyeth case it was from about the end of 1994 until 25th February 1995. During these periods the plaintiffs had done nothing to progress the actions, which the judge regarded as inexcusable.

Mr Buchan criticised the judge's finding that these periods of delay were inordinate or inexcusable. He submitted that this was not a case where there was excessive delay prior to the issue of proceedings, so it was not a situation which is frequently encountered where the writ is issued late in the limitation period and there is then subsequently post-writ delay which can be considered by the court in the context of overall delay. But this is because the period of delay will vary with each plaintiff and may affect limitation in his case, but is not relevant when the judge was considering the delay in the group action.

Next Mr Buchan submits that the delay was not inordinate. So far as the Roche audit was concerned it was only six months; in the Wyeth case it was over two years but, he submits, it was proper to conduct the audit and therefore, even if it was inordinate, it was not inexcusable. So far as the post legal aid period is concerned, this was about 20 months in the Roche's case but in Wyeth's case it was minimal. Further he submitted that the court does not normally consider delay occasioned by the plaintiffs' difficulties with legal aid to be inexcusable if he personally has done all he can to put the matter before the Legal Aid Board. It is unfair on these plaintiffs who survived the legal aid audits to penalise them because a large number of hopeless cases had to be weeded out. The practical problems involved in this litigation on the plaintiffs' side were enormous and in the context of these problems the delay was neither inordinate or inexcusable. Both the court and the parties were in uncharted waters and although with hindsight it is easy to see that errors were made by those responsible for coordinating the plaintiffs' claims, they should not be judged too harshly by the standards and experience at the time.

Mr Prynne's response to this is that the litigation was deeply flawed from the outset. This was because the master statements of claim which defined the ambit of the generic action was settled first, when only comparatively very few claims had materialised. The allegation was that the drugs caused dependency and the injury occurred from the unpleasant withdrawal symptoms. Having launched the group action in this way, those promoting it advertised for plaintiffs. This was in any event, he submitted, not a promising start because it was likely to and did attract a lot of cases that were not genuine, the problem being exacerbated by the fact that many claimants had long- standing psychiatric problems. Moreover it was then found that a multiplicity of different ailments and side effects were complained of, many of which did not fit with the allegations in the master statements of claim. It was therefore the fault of those who set up the litigation on behalf of the plaintiffs who, as the judge found, should have set up proper controls at the point of entry. In group litigation of this sort, the defendants are entitle to complain if the group action is not prosecuted with reasonable dispatch and there is inordinate and inexcusable delay. Effectively here there was over two years' delay in the Roche action (June 1992 to October 1994) and a somewhat longer period in the Wyeth action (June 1992 to February 1995).

I see a good deal of force in the arguments on both sides. If I had come to the conclusion that the judge was wrong on abuse of process, I would be very doubtful whether it was correct to strike the action out solely on the grounds of want of prosecution, though I would hesitate to differ with the experienced judge who has a far greater understanding of this litigation than this court can ever do. But I think in the circumstances of this case delay and prejudice to the defendants were really properly to be regarded as one of the circumstances to be taken into account in considering whether the proceedings were an abuse of process and were to be struck out under the court's inherent jurisdiction. Indeed the judge so regarded it because he specifically referred to it as his seventh reason for striking out on the grounds of abuse. I do not think it added much by way of a separate and/or independent reason for striking out.

Mr Buchan submitted that the defendants had not suffered prejudice by reason of the delay. I cannot accept that. The case involved a consideration of events as far back as the 1970s and possibly earlier. There was ample evidence from the affidavits of Miss Ware and Mr Hickinbottom that of those who were involved on behalf of the defendants at the time, some were dead, others in failing health frail and elderly. With every year that passes the defendants' difficulties would increase. Moreover many of the prescribers themselves, who would clearly be important witnesses, are now elderly even if they are still alive.

In the result I am satisfied that there is no basis upon which this court can interfere with the exercise of the judge's discretion to strike these actions out as an abuse of process. I would go further and say that in my judgment he was plainly right to do so. I would therefore dismiss these appeals.

Finally it is impossible to part with this case without expressing some sympathy with the plaintiffs. I quite understand from those who addressed this court that they are convinced that they and their co-plaintiffs have suffered considerably as a result of taking these drugs and I have no doubt they genuinely felt that there has been fault on the part of the defendants. Equally I can understand their disappointment at the decision of the Legal Aid Board to stop funding their claim, a situation which seems to have been brought about in no small measure by a vast influx of unsubstantiated claims. But not all victims of misfortunes in life fall to be compensated by someone else, though it appears to be a widely held view in this increasingly litigious age that they should be.

LORD JUSTICE BROOKE: About nine years ago a good deal of public concern surfaced about the safety of drugs known as Benzodiazepines. They were used as sleeping pills (hypnotics) or as tranquillisers (anxiolytics). It was said that the manufacturers of these drugs had failed to exercise reasonable care when they put them on the UK market and that they negligently kept them on the market despite the information which flowed through to them about the untoward withdrawal symptoms and other side-effects they created. Although there were at least 17 different compounds of the Benzodiazepine class, manufactured by a number of different manufacturers, on the UK market at one time or another, two of them encountered the greatest volume of criticism in the years of litigation that followed. These were Valium, a hypnotic manufactured by Roche Products Limited ("Roche") and Ativan, an anxiolytic manufactured by John Wyeth and Brother Limited ("Wyeth"). By 24th September 1991, the first cut-off date appointed by Ian Kennedy J, 17,000 applications for legal aid had been lodged, over 10,000 of them against Wyeth. By the second cut-off date, which was extended until 3rd November 1992, 2,230 claimants had issued proceedings against Roche and 3,530 against Wyeth in respect of these two products.

The conduct of this litigation presented formidable difficulties. For example, claimants complained of many different effects of taking the drugs, particularly during the withdrawal stage; these were prescription-only drugs, and since 1985 the National Health Service had prohibited their use by prescribers in favour of cheaper substitutes; the Committee on Safety of Medicines had at all material times been satisfied that these drugs were safe to be licensed in this country; the manufacturers issued warning leaflets to prescribers and maintained they could not be held responsible if prescribers ignored the warnings; the claimants were very often vulnerable people already and the task of disentangling the effects of taking the drugs from their pre-existing anxiety states was often a formidable one; their memories of what took place when they were prescribed the drugs, often many years ago, were often in conflict with what was set out in their doctors' contemporary notes; the drugs were being sold worldwide and the manufacturers were always likely to put forward a substantial defence to the claims that they had been negligent; and because the claims, for the most part, were for damages for a psychiatric injury (which, however unpleasant, was transient in nature), the likely level of general damages awards was never likely to be very high.

The history which is before us shows that a Steering Committee of solicitors was created eight and a half years ago, in the spring of 1988, to co-ordinate the efforts of those who were anxious to pursue claims against the drug companies. Six years later only 51 of the 2230 Roche plaintiffs remained in the proceedings, and in October 1994 Roche invited the court in the exercise of its inherent jurisdiction to strike their claims out. Wyeth, whose 3,530 plaintiffs had been reduced to 47, followed suit four months later.

Wyeth's summons first came before Ian Kennedy J in April 1995. He adjourned it, and coupled with it the appeal and cross-appeal from Master Prebble's order on Roche's summons. After a further adjournment (at the plaintiffs' request) he heard argument for two days in October 1995. He then adjourned the hearing again, to give the plaintiffs one final chance of showing him worked up and realistic proposals for carrying the case forward to trial, notwithstanding that all their funding had been withdrawn. Despite the further three months allowed to them for this purpose the plaintiffs wholly failed to persuade the judge that the litigation was still viable, whatever meaning may be given to that word.

The judge's careful judgment speaks for itself, and justice cannot be done to it by composing a short summary or by selecting "soundbites" from it. A few sentences will give the flavour of the problems he had to resolve:

"I do not believe that it could be right to allow discovery and inspection to be made to and by this or that unrepresented plaintiff in parallel with disclosure to the legal advisers of those that are represented... The funding of the costs of taking this action to trial will be enormous, whether one limits those costs to the tasks properly carried out by a solicitor... Litigation which sets out to show that for 25 years drug companies were, whether by failing to absorb experience or by ignoring it, misleading the medical profession about the properties of some of the most commonly prescribed medicines is not such that simple procedures will suffice... It would be unreal to waive discovery, to allow that would be to make the trial impossibly protracted with witnesses debating papers they had not seen before... The time that has been wasted will make it still the more difficult to prove what was the thinking about those drugs decades ago, and will certainly make it very much more difficult to establish just what was a plaintiff's state when he was prescribed whatever drug he was prescribed, and what happened thereafter."

After setting out the history of the litigation and the contentions of the parties, the judge concluded that the further continuation of this litigation by the few surviving unfunded plaintiffs against Roche and Wyeth would be an abuse of the process of the court. He also went on to apply the tests for striking out individual claims for want of prosecution which have been very familiar to practitioners since Allen v. McAlpine [1968] 2 Q.B. 229 and held that there had been periods of inordinate and inexcusable delay such as to prejudice the defendants and make a fair trial impossible. When making each of these findings the judge was invoking the inherent jurisdiction of the court.

In certain respects his judgment reflects an aspect of the court's inherent jurisdiction which is not readily familiar. This is perhaps inevitable, since mega-litigation creates a whole host of problems that are not commonly met in single party litigation. Interesting arguments have also been addressed to us about the effect of Article 6(1) of the European Convention of Human Rights on the exercise of the court's inherent jurisdiction of the court. It is for these reasons I am adding a judgment of my own to what has been said by Stuart-Smith LJ, with which I agree.

What is meant by the inherent jurisdiction of the court? A hundred and fifty years ago the concept was expressed in these terms:

"The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion." ( Cocker v. Tempest (1840-1841) 7 M&W 501, per Baron Alderson at pp 503-4).

Sixty years later, in another common law jurisdiction, Pring J said in Ferris v, Lambton (1905) 22 WN(NSW) 56 at p 57:

"It is said that I have no power to stay the proceedings. The case no doubt is a novel one, and no precedent had been cited. But if there is no precedent, I think it is quite time a precedent were created. I think the Court has inherent power and jurisdiction to prevent injustice being done."

Turning to more modern authorities, Lord Diplock said in Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corpn Ltd . [1981] A.C. 909 at p 977:

"The High Court's power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff's choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.

The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an 'inherent power' the exercise of which is within the 'inherent jurisdiction' of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice."

In the following year Lord Diplock returned to the same topic in Hunter v. Chief Constable of West Midlands Police [1982] AC 529 at p 536:

"This is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it... The circumstances in which abuse of process can arise are very varied... It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."

And more recently Stuart-Smith LJ set out many of the governing principles crisply in his judgment in Ashmore v. British Coal Corporation [1990] 2 Q.B. 338 at 348B and 349G:

"A litigant has a right to have his claim litigated, provided it is not frivolous, vexatious or an abuse of the process. What may constitute such conduct must depend on all the circumstances of the case; the categories are not closed and considerations of public policy and the interests of justice may be very material. ...

Counsel... has submitted that if we uphold this decision, we are going further than courts have previously done. This may be so, although in my opinion we should not hesitate to do so if the interests of justice and public policy demand it."

Three themes emerge from these and many other authorities on the topic of the court's inherent jurisdiction, which has been expressly preserved, so far as the High Court is concerned, by section 19(2)(b) of the Supreme Court Act 1981. The first is that the court has an inherent jurisdiction to step in and prevent its process being abused for the purpose of injustice, or in order to maintain its character as a court of justice. The second is that the court should be very slow to exercise this summary power (see also Metropolitan Bank Ltd v. Pooley (1885) 10 App. Cas. 210, per Lord Blackburn at p 221: "it should not be lightly done"). The third is that the category of case in which the court should be willing to exercise this power is, almost by definition, never to be closed.

In his seminal lecture entitled "The Inherent Jurisdiction of the Court" which is published in 1970 Current Legal Problems 23, Sir Jack Jacob identified at p 51 some of the purposes of this power as being to prevent improper vexation, to do justice between the parties and to secure a fair trial between them.

Earlier he suggested three broad groups of cases in which the inherent jurisdiction is invoked. These are cases involving control of process, control over persons (for example, the court's control over solicitors as officers of the court) and control over powers of inferior courts and tribunals (for example, the issue of subpoenas in aid of lower courts, the power to admit to bail etc). Within the first of these groups Sir Jack suggested three sub-headings: (1) regulating process and proceedings; (2) abuse of process; and (3) compelling observance of process. He was at pains, however, to stress that these groupings were by no means self-contained, since a case might fall within one or other or all of the groups he mentioned (Jacob, op cit, p 32).

The present case is a good example of this fluidity. Allen v. McAlpine had only just been decided when this lecture was given, and he placed this class of case in his first sub-group (regulating process and proceedings) along with the type of case exemplified by Krakauer v. Katz [1954] 1 W.L.R. 278 in which the court decided it had power to dismiss an action for want of prosecution by analogy with the statutes of limitation where it had been allowed to lie dormant for a period exceeding the relevant limitation period.

Here, however, the Allen v. McAlpine formula has shown itself to be not particularly well adapted to large group litigation where the appropriate test falls clearly into the "abuse of process" sub-group: would it be vexatious (as this word is understood in the authorities) for this group litigation to continue any further? If it would not be vexatious, then the court will have taken the view that there does not exist such prejudice to the defendants as to render a fair trial no longer possible, and the defendants will therefore not succeed in the Allen v. McAlpine test in any event. And the facts of the present case show that the concept of attributing culpable delay to the individual members of a group is a very difficult one to apply fairly: hence the difference of opinion between Master Prebble and Ian Kennedy J on this aspect of the case. (For the usual attitude of the courts to delay in this context caused by the requirements of legal aid authorities, see Alexander v. Page and Page , The Times, 17th June 1977.)

It was in no way the fault of these appellants, 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 if a competent preliminary sifting process had taken place before they were allowed to start legal proceedings with the benefit of legal aid, and none of the appellants were allowed to proceed with their cases while the audit process continued. When we analysed the periods of delay which the judge found to be inordinate and inexcusable, they were found to start in June 1992 when the Legal Aid audit commenced and to finish not at the time the strike-out summonses were issued but at the time the judge decided to strike the claims out. Although the relevant paragraph of the judgment is ambiguous, since it begins with the suggestion that the culpable period of delay ended, as is established by the cases, when the summonses were issued, the judge went on to say at p 290 of the report of this case in [1996] 7 Med LR 292:

"No progress has been made, and the various adjournments the plaintiffs have sought have not borne fruit. These periods of delay were within the plaintiffs' control, though I accept that individual plaintiffs, who had not taken advice, might not fully appreciate the consequences of my having said that the action would not run itself."

Whatever the judge intended to mean by "these periods of delay", which all occurred in the year (or more) between the issue of the summonses and their eventual disposal, the passage exemplifies the point that in very largescale group litigation the exercise of the inherent jurisdiction of the court should not necessarily be fettered by rules that were designed for individual litigation. The judge was, in my judgment, fully entitled to look at the position as at February 1996, after he had given the remaining plaintiffs ample time, at their own specific request, to try to persuade him that the action was still viable. Having afforded them all this time he was in my judgment entitled to take this further period of delay into account when he decided that it would be vexatious and an abuse of process to permit the litigation to continue. It would have been quite unrealistic if he had not done so.

I have been concerned in this judgment with matters of principle. The judge was entitled to exercise the inherent jurisdiction in the way he did, and the eight matters he took into account, which are set out on p 292 and which Stuart-Smith LJ has recited in his judgment, were matters he was entitled to take into account. He found that the continuance of the proceedings would represent an abuse of process. He was entitled to make that finding. He was then under a duty, as Lord Diplock pointed out in Hunter, to strike the litigation out.

Nothing I have said should be interpreted in any way as giving a green light to defendants with vast resources to spin out litigation like this to a point where it becomes no longer triable. It was an important element of the judgment of Ian Kennedy J that he made the emphatic finding that Roche and Wyeth had not engineered the delays that occurred. He said, correctly, that if he had found that complaint to be established, it would have become a potent consideration against the success of the strike-out applications.

Mr Buchan submitted that if we were to uphold the judgment of Ian Kennedy J we would be failing to take appropriate account of this country's international obligations under the European Convention of Human Rights. It is now well established that, although the provisions of the Convention form no part of our national law, the High Court in its supervisory jurisdiction will intervene to quash a decision in an appropriate case if an inferior court or other decision-maker has failed to take any account at all of this country's obligations under the Convention where these are material (see Regina v. Secretary of State for the Home Department, Ex parte Brind [1991] AC 696 per Lord Bridge at p 749). A fortiori , if it is the High Court itself that is exercising its inherent jurisdiction (as opposed to interpreting an Act or Rule made under statutory authority), it is obliged to pay heed to the contents of the Convention when balancing competing interests.

Article 6(1) of the Convention provides, so far as is material, that:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

This is also a very familiar principle of English law. See, for justice in public, Scott v. Scott [1913] AC 417, and for the continuing potency of Magna Carta ("To no one will we deny or delay right or justice") see Allen v. McAlpine [1968] 2 Q.B. 229 per Lord Denning MR at p 245.

Mr Buchan has shown us how in Airey v. Ireland (1979) 2 E.H.R.R. 305 the European Court of Human Rights has interpreted Article 6(1) as meaning that on some occasions the State might be compelled to provide for the assistance of a lawyer where this was indispensable for effective access to the court by reason of the complexity of the procedure or of the case. He also reminded us that in paragraph 24 of its judgment the court said:

"The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial."

He told us that although his client's legal aid had been withdrawn, she and the other claimants who had not failed the Legal Aid Board's audit had not failed what is called the legal merits test contained in section 15(2) of the Legal Aid Act 1988. Legal Aid was withdrawn because the Board was not satisfied that the maintenance of this group litigation any longer satisfied what is called the reasonableness test in section 15(3) of the Act. In those circumstances, since his client's case was not perceived to lack legal merit he argued that she should not be denied her right under Article 6(1), as would inevitably be the case if her claim was struck out.

He conceded that Article 6(1) did not create an absolute right of access to a court, come what may. The guiding principles appear to be set out in the only other Strasbourg decision we were shown, which was the judgment of the same court in Tolstoy Miloslavsky v. United Kingdom (1995) 20 EHRR 442. In paragraph 59 the court said:

"The Court reiterates that the right of access to the courts secured by Article 6(1) may be subject to limitations in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the Court must be satisfied, firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."

The other notable feature of this judgment in the present context is that in paragraph 58 the court recorded that it was common ground that Article 6(1) applied just as much to a defendant as to a plaintiff in defamation proceedings, "where the outcome is directly decisive for his or her ´civil obligations' vis-a-vis the plaintiff". The same considerations would appear to apply equally to the defendants in the present proceedings. They are entitled to a fair trial just as much as the plaintiffs are.

It is a central feature of the judgment complained of that the judge found, on what appear to me to be overwhelming grounds, that a fair trial was now no longer possible. Under our constitutional arrangements the judiciary is not responsible for the decisions made by the Legal Aid Board, which is a wholly independent statutory body dispensing public money in aid of litigants in accordance with the discretions and duties imposed on it by statute. This case is of course strikingly different from Airey where the applicant was not entitled under Irish law to any legal aid at all for proceedings to establish her alleged right to a judicial separation from her husband. Here the Legal Aid Board has apparently disbursed over £33 million in support of this group litigation before it decided that it was no longer appropriate on cost benefit grounds to support it any longer. The reasonableness of the Board's decision was not challenged on judicial review, and it represented a fait accompli so far as Ian Kennedy J was concerned. He had to determine whether it was still possible in these altered circumstances to afford a fair trial both to the small remaining band of unfunded plaintiffs and also to the defendants. Both had had access to a court at the outset of these proceedings in accordance with Article 6(1). In the light of the events that happened (or did not happen) in the ensuing years he said that a fair trial was no longer possible. I cannot see that there is anything in Article 6(1), of which I have taken full account, to prevent this court from upholding the judge when he decided that in the circumstances the appropriate course was to put an end to these proceedings now that the right guaranteed in that Article to the defendants was no longer available. Among other things he thought, correctly, that the proceedings were likely to drag on interminably if he permitted them to continue, and he was not willing to inflict this on the defendants. As Lord Denning MR put it in Allen v. McAlpine at p 245, citing a forerunner of Article 6(1):

"It was urged that we ought not to strike out a man's action without trial because it meant depriving him of his right to come to the Queen's Courts. Magna Carta was invoked against us as if we were in some way breaking its provisions. To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it."

I cannot leave this judgment without mentioning one further matter which should be of general public concern in the continuing debate about the proper conduct of multi-party litigation. Lord Woolf has given the latest stimulus to this debate in chapter 17 of his Final Report on Access to Justice (July 1996). In paragraph 5 of that chapter he wisely remarks:

"In this area of litigation more than any other my examination of the problems does not pretend to present the final answer but merely to try to be the next step forward in a lively debate within which parties and judges are hammering out better ways of managing the unmanageable."

There are now two cases which have come to this court within a month of each other which have shown up particular difficulties in cases where group plaintiffs are claiming damages for psychiatric injury where there was a previous history of psychiatric illness or other anxiety state, or where there may have been more than one cause of the psychiatric condition which post-dated the unlawful act complained of. These cases are often exceptionally difficult to try, and a whole set of quite new problems have been created by the Law Society's relaxation of its practice rules, so that solicitors are now permitted to use the media to advertise the existence of group litigation in a way that was prohibited a few years ago.

In the present case plaintiffs in the group were required to attach a medical report, prepared by a psychiatrist, to their particulars of claim in the usual way, and the problems and expense created by this requirement, when replicated over 5,000 cases, contributed in large measure to the difficulties the case was seen to have thrown up when the Legal Aid audit commenced. At p 272 the judge records that one of the complaints made by the appellants was that:

"...some consultant psychiatrists came to be writing reports when they had no proper understanding of the problems concerning benzodiazepines, and when they were not qualified to, or did not take sufficient care to, distinguish between the effects of withdrawing from a benzodiazepine drug and a recrudescence of an underlying anxiety state. This problem, it is said, became the more serious when [the list of consultant psychiatrists approved by the Steering Committee] had to be extended yet further."

The judge made no findings on this topic, but he went on to record that the psychiatrists' difficulties were exacerbated by the fact, as is not uncommon in cases of this type, that the prescribing doctors were being threatened with litigation, so that the psychiatrists were unable to discuss the individual plaintiffs' condition with the treating doctor who prescribed the drug, and had to glean what information they could from the clinical notes and correspondence that were available to them.

In the recent case of A & B v. Tameside and Glossop Health Authority & Another (unreported 13th November 1996: see The Times 27th November 1996) this court saw the other side of the coin. A group of 114 plaintiffs complained that they had suffered psychiatric injury because of the negligence of two health authorities in the way they had broken the news to them that there was a very remote risk of their having been infected by a health worker who was later found to be HIV positive. Again there was evidence that the group owed its size to local media publicity: a third health authority in another part of the country, which had used exactly the same method to break the news, remained unsued. On this occasion the matter was allowed to proceed to trial in January 1995 on a truncated preliminary issue of liability. Since none of the plaintiffs had yet been permitted by the legal aid authorities to be examined by a psychiatrist for the purpose of the proceedings, none of them could prove that they had in fact suffered damage by reason of the alleged negligence, and this is of course an integral part of the cause of action. The judge found in their favour. We allowed the defendants' appeal against his principal finding of negligence 22 months later.

There was, however, a set of subsidiary issues on which the judge had found for the defendants without giving reasons, and these were the subject of a cross-appeal. On this aspect of the case I said, in a passage with which Nourse and Kennedy LJJ agreed:

"However, I have come to the conclusion that nothing of value could possibly be achieved by remitting this part of the case to be retried. The plaintiffs have failed on their primary case, and we have been told that legal aid has not yet been extended to cover the cost of a psychiatric report on any of them. The events in question happened more than five and a half years ago, and Mr Brennan was constrained to accept that if any of his clients was found to have suffered any psychiatric illness or injury at this distance in time, any psychiatrist would face a daunting task in attempting to disentangle the contents of the news itself and the defendants' method of communicating the news on the one hand from the effect of any negligent deficiencies in the counselling arrangements on the other as causative factors of whatever injury or illness he or she was able to identify."

I mention these matters because I have often heard it said that it is appropriate to stay most of the actions in group litigation at a very early stage, to await decisions on significant issues of common importance on the lead cases. These two appeals have shown up very real problems in cases where the cause of action in large group litigation is based on allegations of psychiatric injury. If the initial examination by a psychiatrist is left too late, there may be the formidable difficulties of recreating history that would have been evident in the Tameside case. On the other hand, the present appeal has shown that, if large numbers of plaintiffs are encouraged through media publicity to join group litigation in which strict cut-off dates are quite rightly imposed, difficulties of a quite different sort will emerge. In the last resort these are issues which the Legal Aid Board needs to discuss with the Law Society and representative bodies representing psychiatrists, so that each can understand the problems facing the others. All the court can do is to make it plain that if it is required to try complex issues of liability in cases involving psychiatric injury, there are very considerable difficulties to overcome, particularly if the psychiatrist in question has never seen the plaintiff before he or she is instructed to advise for the purposes of the litigation, and if substantial delays are then permitted to occur.

Litigation of this type is not something to be embarked on lightly by someone suffering already from an anxiety syndrome. In Lane v. Willis [1972] 1 W.L.R. 326 Sachs LJ observed at p 333:

"This is a serious neurosis case and it is right to emphasise that in such a case each successive examination of the unfortunate plaintiff must be apt to disturb him and to aggravate the very thing for which he is claiming compensation."

Solicitors involved in group litigation like this, where a critical mass of plaintiffs is required to permit the litigation to go forward, must always remember that they should not allow their clients to get involved in such proceedings without fully explaining to them what the litigation may involve. There must have been many thousands of vulnerable people who had their hopes raised by this litigation, only to see them cruelly dashed by the withdrawal of legal aid and, now, by the dismissal of the proceedings. It is only if lessons like this are learned for the future that expensive disasters such as the one represented by the history of this litigation can be in any way justified.

I agree that the appeal should be dismissed.

LORD JUSTICE ALDOUS: For the reasons given in both judgments I agree that the appeal should be dismissed.

Order: Appeal dismissed with costs;

application for leave to appeal

to the House of Lords refused.