England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT
THE HON MR JUSTICE LEVESON
CO/6533/04

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/02/2006

Lord Justice May:

1. H and 9 other applicants apply for permission to appeal against an order of Leveson J dated 14^th October 2005 as now supplemented by his order of 13^th February 2006. Mrs H-R, a barrister, is H's mother and litigation friend. She is authorised by the parents and litigation friends of the other 9 applicants to represent them on this application. Otherwise all the applicants are unrepresented. The parents of the other 9 applicants attended the hearing and each made submissions to me. Mrs H-R made submissions on behalf of all applicants.
2. Leveson J said that, because of continuing litigation, his judgment was delivered in private and no part of it might be reported or published in any way without the leave of the court. He said that at some stage, when the litigation was over, it was likely to be appropriate for the decision to be made public. He had therefore additionally ensured that none of the claimants was identifiable. There were, it seems, two reasons for this. First, the nature of the applications required the court to consider material which was the subject of legal professional privilege. The privilege included that of other litigants than the 10 applicants. Second, the applicants are children.
3. Mrs H-R said that the hearing before me and my judgment should be in public. The applicants' parents obviously wish to make public what they see as grave injustices. I respect that wish. Mrs H-R said that the time was past when the confidentiality of legal professional privilege mattered. She is probably right about that and she and the other parents probably have authority to waive privilege on behalf of the applicants. On the other hand, I am not persuaded that it is in the interests of the individual applicants, being children, that their identities should be more widely known than they presently may be. The hearing before me was in public. For the reasons which I have briefly stated, this judgment is given in public, but the identities of the applicants will remain anonymous, and no publication or report of this judgment should enable their identities to be recognised. Technically, the more stringent order as to publication made by Leveson J for his judgments remains in place.
4. Leveson J's decision was to refuse permission to bring proceedings for judicial review of decisions made by the Funding Review Committee (FRC) of the Legal Services Commission (LSC). He gave a long and careful judgment. I will not repeat its full detail. What follows is a brief summary only of the factual background.
5. All 10 applicants suffer from autistic spectrum disorders ("ASD") and inflammatory bowel disease ("IBD"). The children were among 1600 claimants in a group action against a number of drug companies. Each claimed that the conditions from which they suffer were caused by combined vaccines for measles, mumps and rubella ("MMR") sold by one or other of the companies. Leveson J's first main judgment concentrated on the facts relating to H. His order gave the other 9 applicants a short time to make further written submissions specific to each of them. His supplemental decision of 13^th February 2006 addresses this additional material and in the result dismisses each of the applications of the other 9 children. It was agreed at the hearing before me that I would have to delay giving this judgment until Leveson J had given his supplemental decision. Leveson J's supplemental decision in effect is that none of the 9 children have a case which is materially different from that of H. I have, however, myself received and considered both written and oral statements from the parents of each of the applicants.
6. The LSC issued legal aid certificates covering generic work common to all claims in the group action. The LSC also issued individual legal aid certificates to 1364 of the 1600 claimants. These included certificates issued to lead claimants in the group action and also to the 10 applicants. As is usual in group actions such as this, work done under the generic certificates common to all or many of the claimants was essential to the progress of the individual claims.
7. The actions proceeded and expert evidence was exchanged. At this stage, three leading counsel for the claimants in the group action produced a lengthy advice. They advised that, as the evidence stood, there was no reasonable prospect of establishing that the MMR vaccine could cause ASD, but there was a reasonable prospect of establishing that it could cause a particular form of IBD. They thought that the LSC might not consider that claims in respect of IBD alone would be cost effective. But they expressed optimism that, by the time of a trial, sufficient evidence would have emerged to establish a causative mechanism which would give ASD claims a reasonable prospect of success.
8. On 5^th September 2003, the LSC discharged both the generic certificates and the individual certificates for the lead claimants. The practical effect of this was, of course, to bring the group action to a halt. There followed an appeal against these decisions to the FRC. The FRC upheld the decision to discharge the certificates. Just as the leading counsel who had advised the claimants were pre-eminent specialists in the field, so the FRC panel consisted of an independent specialist leading counsel and three very experienced solicitors. The panel conducted an appeal hearing. Leveson J said of this in paragraphs 10 and 11 of his judgment:

"That hearing was attended by all three leading counsel and three partners of the lead solicitors. The panel had seen and read the lengthy joint advice and material provided for them including experts' reports. There is no suggestion that this hearing did not give all counsel and, indeed, all concerned, full opportunity to advance arguments against the discharge of the certificates.

The upshot of the hearing was that the FRC dismissed the appeal on the basis that there were no longer reasonable grounds for continuing to take the proceedings in relation to ASD and so far as the IBD claims were concerned, it was unreasonable for legal aid to be continued on the basis of cost benefit: see section 15(2) of the 1988 Act and regulation 77(e) of the regulation 77(a) of the 1989 Regulations and section 15(3) and regulation 77(c) respectively. Written reasons were provided running into 10 pages: this included an analysis of the key expert evidence."

9. One lead claimant then challenged the FRC's decision by judicial review. Davis J dismissed the claim and refused permission to appeal. The lead claimant did not seek permission to appeal to this court.
10. After the decision of Davis J, the LSC discharged the present applicants' individual certificates. All the present applicants appealed to the FRC. The FRC dismissed their appeals, upholding the discharge of the certificates on the grounds that the claims had no reasonable prospect of success or on cost benefit grounds. I have considered the FRC's written decision.
11. The applicants then sought permission to apply for judicial review of the FRC's decisions. Permission was refused on the papers. Leveson J refused H's renewed application after a hearing and has now refused the applications of the other 9 children. The applicants apply for permission to appeal against his decisions.
12. Some of the applicants had discontinued their claims against the drug companies. They sought and now seek permission to bring judicial review proceedings of the refusal of legal aid, not to revive those proceedings, but to claim damages from the LSC for the loss of a chance of success in those proceedings. Leveson J foresaw great difficulty here, but did not dismiss the applications on those grounds.
13. The judge, in considering the effect and status of the decision of Davis J, correctly identified the issue before him in paragraph 25 of his judgment as follows:

"Whether on a super Wednesbury or a Wednesbury basis, and subject to however intensive a scrutiny, it has to be demonstrated that, in discharging an individual certificate, the FRC acted unfairly, applied an incorrect legal test, irrationally assessed the prospect of success (or based that assessment on irrational factual findings or assessments) or inadequately reasoned their decision. The FRC were undeniably entitled to take as their own starting point, the decision that they had reached in relation to the generic and lead certificates, with the added knowledge or comfort that their decision, vigorously challenged by judicial review, had been held by Davis J to be proportionate and rational, taking into account the relevant considerations, sufficiently reasoned and without procedural unfairness."

This correct formulation of the questions which the judge had to consider has an important bearing on what I consider to be the main proposed ground of appeal which Mrs H-R advances.

14. The generic certificates and those of the lead claimants had been discharged. This obviously put individual claimants who were not lead claimants into great difficulties, since there was no longer public funding for the mass of very expensive general work which would in practice be a precondition to success for any individual claimant. The whole point of group litigation of this kind is to pool for the benefit of the group expenditure which a single individual or a small number of such individuals could never contemplate alone. The discharge of generic funding would not perhaps make individual litigation literally impossible, but it would make it very much more difficult.
15. For H and the other applicants for whom Mrs H-R speaks, as the judge said, the FRC had to consider whether there was some new material relevant to this group of claimants which undermined the FRC's earlier conclusion or made it inapplicable to them. He said, in paragraph 26, that Mrs H-R relied on Dr Fletcher, Dr Stott and the review which she herself, the claimants' then solicitor, Dr Wakefield and Dr Fletcher had undertaken of the medical evidence which caused them to conclude that there was evidence sufficient on the balance of probabilities to prove the claimants' case. The FRC had dealt with each of these, and the judge did so also.
16. For Dr Fletcher and Dr Stott, the judge summarised the view which the FRC had taken, concluding that their view was unchallengeable in judicial review proceedings and that there was nothing to suggest the FRC had reached an inappropriate conclusion. The judge then turned to Mrs H-R's own analysis of expert evidence, from which she argued that the case could be proved on the balance of probabilities. The FRC had said of this that, without detracting from its quality, it was insufficient in itself to establish the necessary prospect of success. H's case was essentially a case that the MMR vaccine had caused autism. But as to the possibility that his condition was, or was in part, a New Variant IBD, the FRC had emphasised their view that it would not be cost effective to investigate it further as a case capable of succeeding only as an IBD case.
17. The judicial review claim form has 27 numbered grounds for applying for judicial review. But there are essentially 7 reasons why it is said that the FRC's decision was unreasonable, irrational and wrong in law.
18. First, it is said that the FRC did not read the evidence of each of the claimants' 28 experts and so could not assess the strength of the case. The judge held that the FRC had in fact considered all this evidence when it reviewed the discharge of the lead and generic certificates, a decision which had withstood judicial review challenge before Davis J.
19. Second, it is said that the FRC relied on the joint opinion of leading counsel for the claimants in the group litigation which had been prepared without each counsel having read all the expert evidence. The judge held that this allegation was not supported by the evidence and that, although those who prepared the opinion had not each read all the evidence, they had read all of it between them. They were all specialists and could be relied on to pool the product of their individual reading.
20. Third, it is said that the FRC wrongly and irrationally rejected submissions made by Mrs H-R to the effect that H's case did have a reasonable prospect of success. The judge held that the FRC had considered these submissions and was entitled to take a different view. Of this, the judge said at paragraphs 32 and 33 of his judgment:

"As I have said, the FRC made it clear that in their view, these submissions were insufficient to establish prospects of success.

That conclusion is not entirely surprising because it is based on the premise that three specialist silks (writing the opinion), the panel, (including a further silk and three experienced solicitors), and the silk advancing the judicial review proceedings before Davis J had all misunderstood the purport of the evidence and that all these specialist lawyers did not refer the court to the very best evidence that supported the case which they sought to make. It also assumes that Davis J similarly fell into error.

… The issue is whether the FRC were entitled to reach the conclusion in these proceedings that they did about them: in my judgment, in the light of the history that I have recounted, it clearly was."

21. Fourth, it is said that the FRC failed to take into account evidence of the applicants' parents, and of two of the applicants' experts, in addition to that which was contained in their reports. The judge held that the FRC did, in fact, have regard to this evidence but that it did not cause them to reverse their previous adverse assessment of the prospects of success.
22. Fifth, it is said that the FRC was in error in that it referred to H as having received a vaccine known as MMR2, when he had in fact received Pluserix. The judge held that this did not advance his case.
23. Sixth, it is said that the FRC referred to a test result which post-dated the hearing. The judge held that this did not advance H's case.
24. Seventh, it is said that the FRC wrongly assumed that the applicants would have to prove their cases to a 100% scientific standard of proof, rather than on the balance of probabilities. The judge found that there was nothing to suggest that the FRC had applied the wrong standard Of this he said in paragraph 36 of his judgment:

"Finally, before turning to the Convention grounds, I make it clear that I agree with the LSC that, in the light of the joint FRC's professional experience, to say nothing of the professional abilities of all those who made submissions before them, it is inconceivable that a standard of proof of 100% was applied rather than the balance of probabilities; there is nothing in any of the decisions (and in particular the decision in H's case) to support that allegation."

25. The proposed grounds for applying for judicial review were formulated as violations of Article 6, 8 and 14 of the European Convention on Human Rights. It was said that the discharge of the generic and lead certificates was a denial of access to justice and so a breach of Article 6. Mrs H-R referred to Steel and Morris v United Kingdom 68416/01 EHRR. The judge rejected this submission, holding that, as was expressly acknowledged in Steel and Morris, the right of access to a court is not absolute, and conditions can be imposed on the grant of legal aid based on the litigants' prospects of success in the proceedings. It was submitted that the fact that other claimants in the group action continued to have the benefit of legal aid made the decision to withdraw H's legal aid certificate a breach of Article 14. The judge found that those other claims were different from those of the applicants, and that the decision was not capable of being challenged under Article 14. It was submitted that the discharge of the certificate amounted to an interference with H's exercise of his Article 8 rights to respect for private and family life. The judge held that no such breach was arguable, as no public authority was interfering with such rights.
26. Mrs H-R explained to me that the applicants are not now seeking to have legal aid restored to be able to proceed to a full trial. The teams of specialists and lawyers have long since disbanded. But they do seek damages for what they feel strongly a denial of access to justice.
27. The present structure of the claim is an application for judicial review. I shall suppose that it is structurally conceivable that on such a claim the court could make a declaration and direct an inquiry as to damages. I can see considerable difficulties with this, as did Leveson J, but I too shall suppose, without deciding, that it might be feasible. I do not decide this application on purely procedural grounds.
28. The formal written draft grounds of appeal to this court direct attention to Articles 6, 8 and 14 of the ECHR as scheduled to the Human Rights Act 1998. To my mind, the heart of the matter has to address the claim under Article 6. There was, in my view, no viable claim based on a violation of Articles 8 or 14 for the reasons given by the judge.
29. As to a claim based on Article 6, it is obvious that H and the other applicants could not bring their claims to trial without very substantial funding. I will assume, again without deciding, that a refusal to grant legal aid or a withdrawal of a certificate could in some circumstances amount to a violation of Article 6. Such an assumption would, at the very least, need a whole string of heavy qualifications. It is not, I think, necessary to look into those qualifications for present purposes. The important point in the present case is that decisions about public funding for civil litigation can properly take account of a litigant's prospects of success and may take account of cost benefit considerations .
30. I will come to more detailed points which Mrs H-R makes in a moment. But the heart of the matter is that Mrs H-R says on behalf of H that he has a strongly arguable case that the MMR vaccine caused or triggered ASD/IBD in him and the other claimants. The LRC and the FRC decided otherwise. In judicial review terms, this was a decision for them to make, and the judge correctly articulated the limited grounds on which the court would interfere with that decision. I have referred to this articulation earlier in this judgment in paragraph 13. Those grounds did not require the judge to make a primary decision of his own as to the relative strength of the mass of expert material, except to the extent necessary to decide whether the FRC's decision in this respect was, or was not, untenable. As the judge himself said, that was an unlikely conclusion when the process of decision making had included specialist expert input from 3 leading counsel, and when the first decision had withstood a judicial review challenge before Davis J.
31. Mrs H-R submitted that there was some prospect of the applicants being awarded damages. The individual children's records were put before the FRC. Each of the parents have made statements, which were before the judge and which I have read. In addition, each of the parents bravely gave an oral account to me of the causative effect, as they have seen it, of the MMR vaccine on their children. They were normal babies before having the vaccine. Immediately after having the vaccine, they changed and have suffered from varying degrees of autism and IBD ever since. These accounts were dreadful and heart-rending. The parents are angry that no one, as they see it, will take responsibility for the condition of their children; no one will enable their children to recover compensation from organisations that can afford to provide money which the children desperately need; and in some instances that no one will even provide proper treatment for the children's condition. The parents of the applicants are all convinced that the MMR vaccine caused their children autism and IBD. Set against this, however, is that the generic claims were judged not to be viable. It is difficult to see how an individual claim could succeed, even with the parents' evidence, unless the generic claim had first succeeded.
32. In the main litigation before it came to a halt, there were 28 experts' reports prepared on behalf of the claimants. Mrs H-R says that they take weeks, or even months, to read in full, and that she is one of the few people who has read all the evidence. She has made a digest of those parts of this evidence which best support the case that MMR vaccines do cause autism for a small proportion of mostly boys. She drew my attention to parts of her digest and to some relevant letters and reports. She said that it is one of the scandals of our time. Recognising, I think, that there was a mass of other evidence to contrary effect, she said that the tide of research was flowing in favour of the applicants' cases. It is said that the contrary evidence was epidemiological, and it was suggested dismissively that epidemiological evidence can prove or disprove anything.
33. Mrs H-R says that the FRC and the judge did not attach due weight to the evidence in the applicant's favour and her own analysis of it. She draws attention to the opinions of Dr Fletcher and Dr Wakefield. She wrote that the judge's decision was against the weight of the evidence. This mischaracterises the judge's role in judicial review proceedings for the reasons which I have briefly given. Accepting this, Mrs H-R said that the weight of the evidence that MMR vaccines can cause autism is so strong that the FRC's decision that the case was not strong enough to justify continuing the legal aid was irrational. She asked Leveson J to accept her digest – failing which he should have read the reports of the 28 claimants' experts in full. On the basis of the digest, any decision which did not adopt its conclusions as properly arguable for legal aid purposes was irrational.
34. The trouble with this submission is that the FRC had to make a decision about the applicants' prospect of success in the litigation in the light of all the evidence. They could not properly do this by looking at one side of the case only. Just as there were 28 claimants' experts, so there were, I am told, 32 defendants' experts. The claimants' three silks had concluded that the evidence as it stood gave no reasonable prospect of establishing that the MMR vaccine could cause ASD, although they added that they believed there was a reasonable prospect that the tide might flow in the claimants' favour by the time of a trial.
35. It cannot be said to have been irrational for the FRC to reach a conclusion equivalent to the first part of this conclusion. As to the second, it cannot, I think, be irrational for a funding body to decline to fund litigation whose success depended on speculative future research. In addition, that would not accord with Mrs H-R's third main ground of appeal, to the effect that funding was only sought for the relatively inexpensive process of bringing the action to trial on the then present state of the evidence.
36. In short, the FRC did not fail to take account of the evidence to which Mrs H-R refers. I have read their decision carefully. It is properly reasoned, and in my view, it was plainly open to them to take the view of the evidence which they did. The fact that some experts may take a view more favourable to the applicant's case does not detract from this.
37. Mrs H-R says that, if he were in doubt, the judge should have read the claimants' expert witnesses in full. That conflicts with what she appears to have told the judge, who said at paragraph 34 of his judgment:

"I ought to make it clear that the medical evidence has not been put before me. In the papers, the claimant notes the disks containing all the reports are available if requested. In argument, H's mother said that the material would take weeks of study to master and did not submit that I should read it. Given the background (including the way in which the matter is put), and the lengthy analyses to which I have referred, I have not done so."

38. It was, in my view, no part of the judge's required functions upon an application for permission to bring judicial review proceedings to read such a mass of evidence in full. He had to be persuaded on more structured grounds that the FRC's decision was untenable. If he had been so persuaded and had granted permission, and if the judicial review proceedings had eventually been successful, the only feasible order would have been to quash the FRC's decision and to direct them to reconsider it themselves. It was no part of the judge's function to reach a primary decision as to the comparative strength of the expert evidence.
39. Mrs H-R says that the decision was disproportionate, because there would be comparatively little further expenditure if H's proceedings continued. That is plainly wrong. The actions could not proceed without large additional expenditure, even if there were no further research. The very bulk of the expert evidence to which Mrs H-R herself refers makes this obvious. The generic claimants' solicitor had apparently given an estimate of £10m. (in addition to the £15m. already spent) including further research, and the judgment was that the actions were not viable without further research. Further expenditure of this order might be justifiable for viable claims by a substantial number of claimants, but not for proceedings which are judged not to be viable.
40. Mrs H-R then says that there is clear evidence of a causal link between MMR and regressive autism, and that this should be taken with her and her husband's evidence about their own son and the evidence of the parents of the other applicants. She refers to Dr Wakefield's letter at page 49 of the bundle before me, which is dated 7^th February 2002 and the evidence of Unigenetics at page 63, which are reports of measles virus detection tests on samples received in 1999. There is no case for supposing that the LSC/FRC process did not take these and similar matters properly into account in reaching their decision. They are particular parts, of the greatest importance to the individual parents and children, of a much larger picture. The larger picture is that the individual cases were not going to succeed against the drug companies, if the generic case did not succeed. As I have said, the LSC/FRC made decisions on the generic and lead cases which withstood judicial review proceedings before Davis J. Leveson J was obviously correct to say that the FRC were entitled to refer back to and build on their earlier decisions.
41. In my view, the decisions of the FRC now under consideration are not amenable to judicial review for the reasons which the judge gave. The essential point is that there was no properly arguable violation of Article 6 of the ECHR because the FRC reached a proper, sustainable and properly reasoned conclusion about the applicants' prospects of success which in their view did not justify the continuation of public funding. The applicants had in fact had the direct or indirect benefit of substantial public funding during the time when certificates were in place. To that extent, they have all had publicly funded access to justice. The sad fact is that the product of the funding was a rational, properly informed and properly reasoned decision by the LSC/FRC that the litigation was not viable. That decision is not amenable to judicial review, as Leveson J correctly held.
42. For these reasons, I regret that I must dismiss these applications for permission to appeal.