England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE LTA 96/5087/E

(MR JUSTICE IAN KENNEDY )

Royal Courts of Justice

Strand

London WC2

Friday, 31 January 1996

B e f o r e:

LORD JUSTICE BROOKE

SIR BRIAN NEILL

- - - - - -

ANTHONY ROYAL PARISH

Plaintiff/Applicant

- v -

ROCHE PRODUCTS LIMTED

Defendant/Respondent

- - - - - -

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

- - - - - -

The Applicant appeared in person

MR A PRYNNE QC AND MR C GIBSON (Instructed by Davies Arnold & Cooper, London, EC4Y 8DD) appeared on behalf of the Respondent

- - - - - -

J U D G M E N T

(As approved by the Court )

- - - - - -

©Crown Copyright

LORD JUSTICE BROOKE: This is an application by Mr. Anthony Parish for leave to appeal from a judgment of Ian Kennedy J dated 19th October 1995 in which he dismissed Mr Parish's appeal from a judgment of Master Prebble on 20th October 1994 when he struck out the Plaintiff's claim.

The Plaintiff's writ claiming damages against the Defendants was issued on 24th January 1992. It was an action in which a plaintiff alleged that personal injury had resulted from the taking of a benzodiazepine drug, and it therefore fell within the terms of the Practice Notice issued by Lord Lane CJ on 30th July 1991 whereby all such actions were assigned to Ian Kennedy J for his overall control. On 7th February 1992 the Plaintiff was told of this fact by the Defendants' solicitors, and on 22nd February 1992 he served his Statement of Claim. On 20th October 1994 Master Prebble gave him leave to amend his Statement of Claim before he struck it out, primarily on the grounds that the medical reports did not substantiate the injuries the Plaintiff asserted he had suffered by reason of taking Valium.

On 6th May 1992, going back in time, Ian Kennedy J made an order in the Benzodiazepine litigation that the Statements of Claim in a prescribed form, with medical reports supporting and substantiating the injuries claimed, were to be served by 31st August 1992. There was a subsequent relaxation in that date so that the ultimate cut-off date became 3rd November 1992.

The Defendants' solicitors had suggested to the Plaintiff that he might contact Messrs Pannone Napier, the firm of solicitors most centrally involved in the Benzodiazepine litigation, and discuss the matter with them. He did so, and on 14th July 1992 that firm wrote to the Defendants' solicitors saying that he had contacted them and although they were not to come on the record, they would be grateful to receive all correspondence on his behalf and meanwhile they asked for a general extension while they investigated matters. The extension was granted, and Pannone Napier were reminded again that the Statement of Claim (in the form prescribed by the judge) and the supporting medical report had to be served by 31st August 1992. On 20th October the Judge extended this cut-off date to 3rd November.

The Plaintiff was unable to comply with this requirement imposed by the judge who was in charge of the group action. On 2nd November Pannone Napier explained that the reason for this was that further enquiries were necessary with the expert instructed in this case, who unfortunately appeared to be on extended leave, and would not be returning until 9th November.

According to the Defendants the cause of this difficulty was that the doctor, Dr Nabi, who had been asked to furnish a report, had written an unfavourable report on the footing that he took the view that 2mg of Valium, which is what the Plaintiff had been prescribed, could not have caused the damage of which he was complaining. The doctor then went abroad and it was impossible to obtain a further opinion from him before the deadline imposed by the judge.

In the very clear and helpful skeleton argument of Mr Parish, who has made oral submissions to us today with clearness and with great moderation considering how strongly he feels about what has happened, he explains why he believes that Dr Nabi was unwilling to support his action. We have read those reasons.

The judge dismissed the Plaintiff's appeal from the Master's order on the grounds that this case fell fairly and squarely within the terms of his decision, which was endorsed by the Court of Appeal in the case of Nur v John Wyeth & Brother Ltd [1993] PIQR 72, where no Statement of Claim which complied with the requirements of the litigation, accompanied by the documents ordered by the judge, had been served within the time ordered. He said that there was a total failure by the Plaintiff to comply with the control of the litigation which he sought to impose.

In considering the reasons given by the judge for dismissing the appeal from the Master's order, it is necessary to turn to the case of Nur to understand why the judge acted as he did. Mr. Mohammed Nur was another claimant in the Benzodiazepine litigation. The psychiatric report he proffered in August 1992 did not adequately substantiate his injuries in the manner directed by Ian Kennedy J and no supplementary report was served until 16th November, 13 days after the judge's extended deadline passed. The judge's ability to control this group litigation had already been endorsed on two separate occasions by this court - see the reports at [1992] 1 WLR 168 and [1993] 4 Med LR 1. In particular, in the latter case Steyn LJ said at page 6:

"The imposition of a cut-off date is necessary in the interests of the fair and efficient litigation as a whole."

In refusing leave to appeal in Nur Rose LJ observed at page 75 that the judge had not deprived himself of the exercise of all discretion since he had explained the circumstances in which he would be willing to admit minor amendments or amendments to introduce new symptoms after the cut-off date. He was wholly unpersuaded that leave to appeal should be granted.

When it was suggested that Mr. Nur's case, although separated from the group action, should be allowed to proceed on its own, Rose LJ quoted a passage from the judgment of Balcombe LJ in AB & Others v John Wyeth and Brother Ltd [1993] 4 Med LR 1 at page 3 in which he quoted a passage from the Guide to Group Actions published by the Supreme Court Procedure Committee. This was in these terms:

"The claiming of a particular Group of litigants does not of itself prevent the excluded litigants from seeking to carry on their litigation either as individuals or in another Group, but in some circumstances they may be prevented from so doing either as a matter of law or expediency. As a matter of law, the decision of the judge preventing the would-be plaintiff from joining the group may have been on a preliminary point of law such as limitation of action which would determine liability finally."

This then was the ground on which Ian Kennedy J dismissed Mr Parish's appeal and he did not go on to consider three other grounds put forward by the Defendants as a reason for striking the claim out, namely:

(1) that the medical reports which had been served in 1994 did not substantiate the injury relied upon

(2) that the claim was frivolous and vexatious and

(3) that it constituted an abuse of process of the court.

It is now necessary to say a little about Mr Parish's claim, as it appears from the Amended Statement of Claim from which Master Prebble granted leave. It appears from that document that he is now 65. He had been a successful businessman between 1953 and 1970 and had enjoyed a happy family life. In 1970 he was suffering from a spastic colon syndrome for which he was prescribed Valium by his local GP in Norwich, and he continued to be prescribed Valium for tension by doctors at that surgery until February 1978. He maintains that he suffered chronic poisoning which led to brain damage, disorder, unwelcome psychiatric symptoms and neurological disorders which led to him being unable to make rational decisions or control his temper or concentrate. He could not continue his business career between 1972 and he suffered the breakdown of two marriages and lost all his possessions. He alleges that his misadventures were all caused by the Defendants' fraudulent medicine, gross negligence and/or breach of statutory duty. He maintains that he did not know that his symptoms were connected with ingestion of the Defendants' products until September 1991, over 20 years after Valium was first prescribed, and how passionately he feels that his misfortunes were caused by the taking of Valium have been made completely clear to this Court both from the written submissions and other written documents which he has furnished to the Court and from what he has told the Court today.

Mr Parish maintains that Ian Kennedy J acted unjustly in dismissing his appeal because he had failed to meet the cut-off date in November 1992 on three grounds. First, his fundamental British right to self-representation under English law was removed. Secondly, his statutory right to self-representation under European law was removed. And, thirdly, his statutory right to benefit from what is now Section 11 of the Limitation Act 1980, which allows him 3 years in which to bring his action after the date of his knowledge (within the meaning of the Act), was taken away from him.

A number of cases came before another division of this court, of which I was a member, last month in AB & Others v John Wyeth & Brother Ltd (unreported, 13th December 1996). So far as I can recollect in none of those cases was there a crystal clear assertion by a plaintiff that his date of knowledge unquestionably fell at a very recent date and that he had issued his writ timeously after the date of knowledge occurred. It is therefore necessary for this Court to look quite carefully at the basis on which it would be proper to dismiss the Plaintiff's appeal if that means taking away from him a right granted to him by Parliament to bring an action for personal injuries within 3 years of the date of knowledge. For my part, I am quite satisfied that Ian Kennedy J was entitled to take the view he did about Mr Parish's claim no longer being permitted to form part of the group litigation. For the reasons which have been set out in successive judgments of this court in the Benzodiazepine litigation he was entitled to impose the cut-off dates he did in order to ensure that the litigation as a whole would move forward in an economic and efficient manner.

But the fact that a claim is properly excluded from the group litigation cannot possibly without more justify the Court being willing to strike it out, particularly if there appears to be a strong prima facie case that it was brought within the appropriate limitation period. It is for that reason that I go back to the decision given by Master Prebble, which was founded on one of the bases on which the Defendants applied to strike out Mr. Parish's claim, namely that the medical reports that he furnished after the cut-off date imposed by Ian Kennedy J did not substantiate his claim that he had suffered injuries as a result of taking Valium and as a result of the Defendants' negligence and fraud and the other wrongful acts of which he complains.

There are two medical reports in question. One is by Dr Alberta Flashman, who practises in Annapolis, Maryland, on 22 July 1993. She wrote that she had

"the opportunity of performing a psychiatric evaluation on Mr ... Parish.

The results of my examination together with the material presented by Mr Parish lead me to conclude that it is quite possible that Valium precipitated a Toxic Psychosis between the years of 1970 to 1984. Previous exposure to Trichloroethylene may have been a contributing factor."

That is a reference to the fact that that substance, which is quite shortly called TCE, is believed to be a cause of chemical poisoning. Mr Parish said that in 1984 he was diagnosed as suffering from chemical poisoning caused by TCE, which is a chemical used in the dry cleaning industry and in various chemical warfare agents, and that he had worked in a dry cleaners from 1945 to 1947.

So far as Dr Flashman's report is concerned, this could not be a report which could be effective to persuade a Court that Mr Parish's belief that his injuries and other troubles were caused by Valium were indeed to be attributed to that cause to a standard of reasonable probability, which is the test which a civil court applies. All that Dr Flashman was able to say was that it was quite possible that it precipitated the Toxic Psychosis.

Dr Harris's report was written on 22 March 1994. He writes from the Chesapeake Comprehensive Consulting Centre of Annapolis. He said that at the time of the examination there was no evidence that Mr Parish suffered from Toxic Psychosis, Functional Psychosis, Disabling Depression, or any other major psychiatric illness at that time. Although Mr Parish had related a history of an extended period of psychiatric problems, Dr Harris was unable to diagnose the nature of the problems, but he noted that TCE had been mentioned as a likely cause of cerebral toxicity. What Dr Harris said was this:

"In my opinion Trichloroethylene is a likely cause of some cerebral toxicity. Mr Parish was exposed to this chemical through his employment from 1945 to 1947. It is of note that he did not develop symptoms of Toxic Psychosis at that time or immediately thereafter. It was not until 1972 that he began experiencing difficulties with his thinking and possibly suffering from auditory hallucinations. He also developed beliefs in premonitions and there may have been a delusional quality to that. In retrospect he has assembled evidence that these symptoms coincided with the prescription of low doses of Valium for spastic colon and abdominal cramping. Although Valium does not usually cause these symptoms in otherwise healthy people, it is conceivable that Valium would ´uncover' or augment symptoms in Mr Parish because of the earlier Trichloroehtylene(sic) exposure. Accordingly, I can conclude that Mr Parish's legal case should be taken seriously. It appears to me to hinge on whether or not there has ever been evidence of an interaction between Valium and sub-clinical brain damage or toxicity caused by Trichloroethylene exposure. It is known that some sedatives, such as short-acting Barbiturates, will worsen some not-otherwise-observable neurological deficits."

A little bit later Dr Harris said:

"It is not within the scope of this letter to comment upon the likelihood of this being the causative chain of events. An exhaustive literature review should be done seeking to find other cases in which mild brain damage or behavior pathology was accentuated by a prescription of Valium. If none exists, then apparently Mr Parish has a weak case. However, if some other interactions have been reported in the literature, I would consider Mr Parish's case to be vastly strengthened."

It is to be observed that Dr Harris, like Dr Flashman, was unable to say that on the balance of probabilities Mr Parish's troubles were caused by taking Valium, although he was in effect going so far as to say it was arguable that they were.

When the cases of the remaining litigants in the group action came before this court last month it was clear that there were very great difficulties in establishing cause and effect. There were Plaintiffs in this court last month who felt just as passionately as Mr Parish does that the woes from which they have undoubtedly suffered were caused by the taking of the Valium and that the Defendants were negligent. For the reasons which were set out by Stuart-Smith LJ in his judgment in that case, so far as the Plaintiffs in the group action were concerned, this was a case in which a court in its inherent jurisdiction should strike the claims out, and during the course of my judgment I explained why - notwithstanding the principles of common law that the citizen should have a right of access to the courts and the principles set out in the European Convention of Human Rights to the same effect - this was a case in which the Court should exercise its inherent jurisdiction to strike the claims out.

I only mention those matters because it may be that in another case when one had a medical report in terms such as those written by Dr Harris a Court might take the view that it would be inappropriate to strike a claim out, at any rate until after discovery was complete. But from what this Court knows about the previous history of the Benzodiazepine litigation and the great difficulties in proving causation, except at quite inordinate expense, this is a case in which, in my judgment, the Court is entitled to take into account the fact that in nearly 3 years - I am referring to the period between the date on which the writ was issued and the date on which Master Prebble struck it out - Mr Parish was unable to find any doctor willing to substantiate the beliefs he genuinely and sincerely holds that on the balance of probabilities the cause of his sufferings from 1970 onwards was the Valium that he took. Of course, even if he could show that, he would then have to go on to show that the Defendants were in some way negligent, for which purpose he would have to go back into the 1960s and early 1970s with all the problems of the passage of time that were apparent from Stuart-Smith LJ's judgment in the case last month.

In my judgment, this case should be struck out. It should be struck out so far as the relevance of Ian Kennedy J's cut-off dates were concerned because he was entitled to rely on those cut-off dates as a control of a litigation assigned to him, but it should also be struck out as a piece of free-standing litigation for the reasons given by Master Prebble in that the medical reports did not substantiate a case that the injuries that the Plaintiff suffered were caused by the Defendants' negligence, and in effect the Court should exercise its inherent jurisdiction to strike out the claim on those grounds as well.

For these reasons, I am of the opinion that this application should be dismissed.

SIR BRIAN NEILL: I agree that this application for leave to appeal should be dismissed for the reasons given by Brooke LJ.

Order: application dismissed with costs.