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Cite as: [2019] IEHC 922

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THE HIGH COURT

[2019] IEHC 922

[2019 No. 84 MCA]

IN THE MATTER OF THE DEPUY ADR PROCESS

AND IN THE MATTER OF AN ORDER MADE ON THE 16TH DECEMBER, 2015, IN THE CASE

OF CHRISTOPER GAFFNEY V DEPUY INTERNATIONAL LIMITED

AND IN THE MATTER OF AN APPLICATION BY MALCOMSON & LAW SOLICITORS ON

BEHALF OF NAMED CLIENTS

JUDGMENT of Mr. Justice Cross delivered on the 20th day of December, 2019

Background

1. As of December 2014 there were over 1,000 anticipated cases involving claims for

damages as a result of the allegedly defective ASR, replacement hips which were

manufactured by DePuy International Limited (DePuy). By order dated 16th December,

2015, this Court established an alternative dispute resolution (ADR) process to deal with

claims in relation to these allegedly defective hips from certain qualifying claimants.

2. The scheme was finalised after a number of applications with parties suggesting

alternative wordings to the scheme and was revised on a number of occasions. The

applicants’ solicitors, Malcomson & Law, were one of the main objectors to certain terms

in the scheme as finally adopted. The scheme was approved by the Court on 16th

December, 2015.

3. The scheme provided for resolution without attribution of liability and awarding of

damages by a panel of barristers and retired judges who would assess damages based

upon paper records in respect of claimants who had the ASR Product inserted in Ireland

and underwent revision surgery within 10 years of the initial hip replacement and not

earlier than 180 days after it. The scheme reserved the right for DePuy not to agree to a

claimant entering the ADR scheme if certain issues arose eg. if the claim was potential

statute barred or the claimant had not obtained injuries board authorisation or certain

other matters.

The ADR scheme (“the scheme”)

4. The scheme required that DePuy’s solicitors (McCann Fitzgerald) to produce a report

every six months or such lesser period as might be fixed by the Court and copy all known

claimants’ solicitors with the details of the progress of the claim.

5. Clause 3.1 of the scheme provided:

“A claim qualifies to enter the process:

(a) The index operation implanting the ASR Product in the patient occurred in

Ireland and

(b) The claimant underwent revision surgery in Ireland within 10 years of the

index operation but not earlier than 180 days after the index operation.”

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6. Clause 3.2 provided that DePuy did not agree to a claim entering the process if in their

opinion the claim was statute barred, injuries board authorisation had not been obtained

or the claim related exclusively to various matters and further if the claim was not

sufficiently pleaded or particularised or if sufficient medical records or other details had

not been given to McCann Fitzgerald.

7. Clause 5.1 of the scheme provided:

“For the purpose of the process:

(a) The claimant will not be required to establish that the ASR Product supplied

to him or her was defective within the meaning EC Product Liability Directive

(the Directive) or that DePuy was negligent provided the claimant proves that

the ASR Product early revision by reason it being an ASR Product.

(b) DePuy will not raise any of the defences otherwise available to it under Article

7 of the Directive and

technique or error causing or contributing to the early failure of the ASR

Product and the Evaluator shall evaluate damages and costs on the

assumption that the surgical technique or error did not cause or contribute to

the early failure of the ASR Product.”

8. Clause 5.4 provided that:

“A claimant may avail of the process by completing a standard short form with

essential details of the claim (which shall be entitled ‘Form B’, the form of which is

scheduled here to) and by his or her solicitor submitting that to McCann Fitzgerald

(reference DFH).”

9. Clause 5.5 provided:

“Where DePuy’s advisers are of the opinion that they have sufficient information

including sufficient copy medical and surgical records, to form a view as to whether

the claim meets the eligibility criteria of the process and to form a view about the

validity and the value of the claim McCann Fitzgerald will endorse Form B at the

place indicated at the bottom of the form and return the form to the claimants’

solicitors.”

10. Clause 5.7 provides:

“The claimants’ solicitors may also send to the Evaluator any other documents

which they consider are relevant to the Evaluation. Such documents may include:

(a) A condition and prognosis report dealing also with causation where relevant;

(b) A concise witness statement from the claimant, if desired; and

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11. Clause 5.12 provided:

“DePuy envisages that in cases involving uncomplicated revision surgery it will

rarely be necessary for it to obtain expert reports for submission to the Evaluator

but it may do so if so advised.”

12. Clause 9 provided:

“Following the submission of a completed Form B by the claimants’ solicitors to

McCann Fitzgerald the claimant and DePuy shall not take any active steps (including

the making or increase of a lodgement by DePuy) in existing proceedings

concerning the claim, or shall not issue new proceedings regards an ASR Product

before an evaluation has been issued by the Evaluator and the Evaluation has

lapsed pursuant to clause 8.1.”

13. At the time the ADR process was initiated claims against DePuy were being Specially

Fixed in the High Court at two per week in 2016. Such was the progress of the scheme

and of parallel settlement negotiations that while 71 cases were listed for trial in 2016,

only 5 cases were listed for trial in 2019. Accordingly, it can be seen that a combination

of the operation of the scheme and the parties willingly negotiating settlements, the

substantial majority of these claims are already disposed of.

14. There has only been one judicial determination in relation to liability since the

establishment of the scheme. Rather than swamping the Courts with up to 80 cases a

year which could each take a number of weeks and involve a significant number of expert

witnesses some of whom would have to travel from out of the jurisdiction, the scheme

has worked to dispose of the cases economically in conjunction with DePuy, through their

solicitors negotiating with other claimants.

15. I accept the evidence in the affidavit of Mr. David Hurley, solicitor on behalf of DePuy that

of the 1,125 proceedings issued at the date of swearing of the affidavit in April 2019

revision surgeries to remove the ASR Products have occurred in 904 of these claims and

221 cases revisions are not being performed and accordingly these 221 would not qualify

under the ADR scheme. I note that the vast majority of these 221 claims have not

progressed beyond the service of an initiating writ. Presumably the plaintiffs and their

legal advisors are waiting to see how their physical situation develops and whether they

have a realistic prospect of success in litigation.

16. Of the 904 claims a total of 602 were resolved by April 2019 and the Court is aware from

subsequent applications over the months and weeks after April 2019 that a number of

other cases have been resolved in the meantime. During the six monthly review of the

process of the scheme held on 13th December, 2019, a total of 645 cases were reported

as being resolved. There were a total of 485 claimants left, 282 of these only relate to

revised hips, eligible for the scheme and of these revised hips 92 cases were within the

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ADR scheme and the considerable majority of these cases left in the scheme are those of

Malcomson & Law, the solicitors for the applicants herein.

17. When establishing the scheme and subsequently this Court has made it clear that there is

no point in establish an ADR scheme which allowed applicants bring claims before the

ADR process which DePuy would refuse to accept. DePuy state that they do not accept

that cases, in which there has been no revision surgery, are not suitable for ADR process

as without a revision, they claim it is not possible to know why a hip has failed if it has

failed. Similarly, if they had other defences (such as the statute limitation or failure to

apply to the Personal Injuries Board) it would be pointless to establish a scheme resulting

in an award which would then not be accepted by DePuy. Of course either side under the

scheme can reject any award under the scheme and proceed to the Court.

18. In an application brought in the case of Flynn v. DePuy International Limited & Ors.

[2017] IEHC 267, by the same solicitor as the within application (referred to as “Flynn”)

to revise the terms of the ADR scheme I indicated that as well as a review of every six

months or so of the general operation of the scheme it was open to parties to apply to me

to revise the scheme should they deem same necessary.

19. At the time of the Flynn case I expressed disappointment as to the speed of resolution of

claims. That is no longer the case.

This application

20. This an application brought by Mr. Raymond Bradley solicitor, of Malcomson & Law, the

solicitors on record for a number of plaintiffs bringing actions against DePuy including

those listed in schedule one and two of the notice of motion. The application seeks:

“(i) Directions in relation to the entitlement of DePuy to put causation an issue in cases

listed in schedule one of a notice of a motion dated the 28th of February 2019;

(ii) Directions in relation to the entitlement of DePuy to require additional medical

records and/or medical examinations in the case listed in schedule two of the

motion;

(iii) An order amending the ADR process referred to in the said motion by the deletion

of clause 9 from the process; or

(iv) Alternatively an order permitting the plaintiff in the proceedings listed in schedules

one and two to prosecute their claims before the Court.”

21. The application was grounded on an affidavit of Raymond Bradley, solicitor, as well as

further affidavits from the claimants listed in schedules one and two, James Boylan,

Katherine Claffey, Martin Coady, Angela Dermody, Frank Gallagher and Michael Gilfoyle.

These claimants stated that they withdrew their consent from operating the scheme as

presently constituted. It should be noted that it has transpired that Mr. Coady, one of the

plaintiffs specified in the schedule, has not yet had his Form B endorsed to enter the

scheme so is not in fact part of it.

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22. On behalf of the respondents there was a replying affidavit from Mr. David Hurley,

solicitor of McCann Fitzgerald, which was responded to further affidavit on behalf of Mr.

Raymond Bradley and two of the claimants to which a further response was given by Mr.

Hurley.

The applicant’s case

23. I heard the learned submissions of counsel for the applicants which honed in on some of

the written submissions.

24. The directions that the applicants seek that evaluation of their cases within the scheme

should only occur (i) “with a clear withdrawal by DePuy of causation issues purported to

be advanced, (ii) without any further request for medical examination on behalf DePuy

and (iii) without any further request for medical records be made on behalf of DePuy.

The scheme was entered into to provide monetary awards to those entitled to enter and

not to engage in issues of causation.

25. It is clear from clause 3.1 that “early revision” in clause 5.1 means a revision within 10

years of the operation but not earlier than a 180 days. The applicant submits that in any

of the cases in which they have queried causation DePuy have not notified any possible

alternative causes for early revision and further that after receipt of further medical

reports DePuy did not alter their position in relation to causation.

26. The applicant relies upon clause 5.5 of the scheme to submit that once DePuy’s solicitors

are of the opinion that they have sufficient information including information as to the

validity and value of the claim that they will endorse Form B and from then on there

should be question of causation.

27. Clause 5.12 of the scheme provides “DePuy envisages that in cases involving

uncomplicated revision surgery it will rarely be necessary for it to obtain expert reports

for submission to the evaluator but may do so if so advised.” The applicants object to the

extent of which some of them have been obliged to furnish “extensive” medical reports

and that the insistence of DePuy for disclosure without any temporal limit of “all records

relating to non-hip issues” in certain cases is claimed to be severely prejudicial.

28. The applicants concede that DePuy are entitled to exclude claims where they are of the

opinion that a plaintiff has not provided sufficient medical records however the applicants

state that DePuy are insisting on persons who are admitted to the scheme provide what

they describe as additional and unnecessary medical records in detail which they find

oppressive.

29. The applicant further seeks that clause 9 of the agreement be amended or in the

alternative that an order be made that each of the applicants referred to in the schedule

be entitled to proceed to litigate in Court.

30. The applicants object to the prohibition in clause 9 on them prosecuting their claims

through the pleadings and interlocutory applications while the ADR scheme process is in

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place. In this regards the applicants state in their affidavits that they have withdrawn

their consent to participate in the scheme having originally entered into it.

31. The scheme does not make any express provision for a plaintiff to withdraw from the

scheme after they have submitted a completed Form B. Under clause 12 however DePuy

are given an entitlement to “terminate this process” (ie the entire scheme) giving 45

days-notice in writing to the Court and to evaluators and to the solicitors for the claimant.

The applicants contend that this power given to DePuy under clause 12 by implication

must be replicated by a similar power on applicants to withdraw from the scheme at will.

32. The applicants firstly say that they are entitled, as a general right, to withdraw from the

scheme once their consent has been withdrawn and if there is not a general right to do so

they claim that the Court should exercise its discretion to permit the cases to proceed in

Court. The applicants rely upon the affidavits sworn in Flynn (above) by Mr.

O'Shaughnessy of Johnson & Johnson on behalf of DePuy in which DePuy accepts “that

any decision to participate in the ADR process must be a voluntary one so in the event

that having considered the matter a plaintiff decides not to participate in the ADR process

such a plaintiff can then apply to the court to set aside the adjournment order.”

33. The applicant further submits that in the event of the Court deciding that it does not have

the jurisdiction or will not allow the applicants to withdraw from the scheme that clause 9

should be amended either by its deletion or by making provision for the plaintiff to

withdraw from the scheme so that the stay on proceedings is clarified as continuing only

for so long as a plaintiff is continuing to consent to remain in the scheme.

34. It is further contended that in the absence of the applicants’ consent there can be no

question that the scheme could ever vindicate their constitutional rights and rely upon the

decision in Grant v. Roche Products (Ireland) Ltd. & Ors. [2008] 4 IR p. 679.

35. The applicants also rely upon Ryan v. Walls [2015] 2 IR p. 558 to support the contention

that the ADR process requires consent and Talbot v. Hermitage Golf Club & Ors. /span>

IESC 57 in relation to the right of their claimants to access to the courts established by

the constitution.

36. Counsel for the applicants submit that they have lost confidence in the scheme for good

reason and even if it were not for good reason the fact that they have lost confidence is

sufficient to allow them to withdraw from it. Counsel further submits that any personality

disputes between the solicitor for his clients and for the respondent should not be visited

upon their clients and that his clients are in effect now in “no man’s land” and the

respondents are forcing them against their will to maintain their presence in the scheme

and to deprive them of their right for a day in court.

The respondents’ case

37. The respondents’ written submissions were amplified by oral submissions of learned

counsel.

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38. The respondents state that the firm of Malcomson & Law has the second highest number

of claimants but whereas the firm with the highest number of claimants has resolved 72%

of its cases and the six other firms with the highest number of claimants have resolved

between 92% and 55% that at the time of swearing of Mr. Hurley’s affidavit in April 2019

Malcomson & Law had only resolved one of their claims or 0.09%. Malcomson & Law have

declined to allow the applicants to be medical examined and declined to furnish

records/reports as requested and therefore they submit are responsible for their clients’

cases not being processed. Not alone have Malcomson & Law not processed their claims

in the scheme but they have not cooperated when suggestions of negotiations were

raised, and in effect the applicants have not acted bona fide. It is contended on behalf of

the respondents that the applicants’ solicitors are not engaging with the scheme or indeed

engaging with the DePuy solicitors as they have declined to engage in negotiations in

their cases.

39. It is submitted that none of the applicants can distance themselves from in this

application from the acts or inactions of their solicitor.

40. Of the 1,125 proceedings served on DePuy, revision surgery occurred in 904 claims

meaning (subject to other criteria) most of these were eligible for the process and of the

904 claims 602 had been resolved by the time of the respondent’s affidavits in April 2019.

In fact, 645 of the proceedings have been settled or determined by the time of the last

review of the process on 13th December, 2019. It should be pointed out that the

solicitors for DePuy have received by April 2019 247 applications for the ADR process and

95 claims remain and 60 of the 95 are those in which Malcomson & Law are the solicitors.

41. A majority of the claims have been disposed of not through the ADR scheme but in

parallel with it either by the negotiation of claims before they go into the scheme or by

the settlement of the claims that are still within the scheme.

42. It is submitted on behalf of the defendant that neither the ADR process nor its

administration cause any undue delay in the resolution of claims and that if an evaluation

is rejected that a claimant can avail of their constitutional rights access to the Court. In

relation to those claims that were processed in the scheme the average length of time

from when Form B was endorsed by McCann Fitzgerald on behalf of DePuy (and therefore

the case could proceed to the evaluator) and the receipt of an evaluation was six months,

though it is conceded that this length of time can vary significantly and is dependent upon

whether the claimant or DePuy obtain further expert reports after Form B was submitted

and to the extent of submissions required etc.

43. It is further contended that the ADR process is cost efficient as claimants do not need to

expend as much cost under the scheme as full litigation in the courts.

44. Mr. Hurley on behalf of the DePuy stated that there are a further 204 claims in which the

claimants have undergone surgery but have yet not applied for the process but he

believed that at least 50 of these claims would not be eligible as either the revision was

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due to infection or occurred over 10 years after the surgery or did not obtain injury board

at authorisation or was statute barred all of which claims are excluded from the scheme.

45. The respondent submits that the applications for “Directions” are seeking in substance to

amend the terms of the process and that this is clear by the demand by the applicant that

the evaluation should only occur when there was a withdrawal by DePuy of any causation

issue and that there were no further requests for medical examinations.

46. The respondent contends that the assertion that because the applicants purport to

withdraw their consent that they are automatically entitled to prosecute their cases is an

argument that was considered in detail and rejected in this Court’s decision in the Flynn

application (above). It is submitted by DePuy that in accordance with the decision of the

Court in Flynn that an applicant is entitled to make an application to the Court for a trial

date on an individual basis but in doing so must explain to the Court why he or she is not

participating in the process and provide good reason for the application and that no good

reason has been supplied in the submissions or affidavits of any of the applicants as to

why they should be entitled to ignore the terms of the process and utilise limited court

resources in circumstances where other DePuy litigants have complied with the

procedures set up by the Court and have participated.

47. It is further submitted that the provisions of clause 9 which put a stay on cases pending

completion of their applications cannot be considered a disproportionate interference with

the constitutional rights to litigate as individual applications can be made.

48. In relation to the applications for directions the respondents contend that clause 3 which

specifies “Claims Criteria” does not mean that once clause 3 is satisfied that there is no

basis to raise the defence of causation. They contend that clause 5.1 stands on its own

and that pursuant to 5.1 a claimant must establish that the product required early

revision by reason of it being an ASR Product and it provides a specific provision for a

particular causation defence. The respondents contend that the submission by the

applicant that clause 5.1.A should be amended to provide a provision to the effect that

“for avoidance of doubt the claimant is not required to prove that the ASR Product

required early revision by reason of it being an ASR Product.” involves a complete

alteration of the ADR scheme for the particular benefit of the clients of Malcomson & Law

who represent 60 out of the 95 cases remaining in the scheme.

49. In relation to the complaints about excessive medical examination the respondents note

that the applicant accepts DePuy is entitled to have the applicant examined by an expert

but suggests that there are limits to the extent that they can do so. The respondents

submit that clause 5.12 which provides “DePuy envisages that in cases involving

uncomplicated revision surgery it will rarely be necessary for it to obtain expert reports

for submission to the evaluator but may do so if advised.”, clearly allows for not alone

medical examination but reports from experts and that the statement that it would be

“rarely” “necessary” to obtain expert reports is an aspiration as is clearly stated in the

scheme.

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50. The respondent submits that there are circumstances when it is necessary to obtain

medical reports on foot of examination and in particular when there has been significant

special damage advanced and the scheme specifically allows DePuy to insist upon these

matters.

51. In relation to medical records the respondent submits that they are entitled to request

them, they have not been overzealous and that in general only necessary records are

requested but certainly if there is large special damages claim, further records are

relevant. The respondent quotes that portion of the decision of the Court in Flynn which

stated “Mr. Bradley has not processed his claims which are eligible for the scheme

because he does not like it and wished for it to be expanded inter alia to include all

possible claims. Accordingly, at least some of the reason for the very disappointing

figures as to the numbers that have been processed by the scheme must lie with the

reluctance of Mr. Bradley and possibly some other solicitors to present their cases to the

evaluators.” The respondents say that that is still the case with Mr. Bradley and his

clients.

52. In relation to the claim by the applicants that they have withdrawn their consent and that

the manner in which the case is being processed within the scheme is such that the Court

should exercise its discretion to allow all of the plaintiffs in the schedules to depart from

the scheme, the respondent says that the suggestion that simply because the applicants

have elected to withdraw from the process that they are entitled to prosecute their claim

flies in the face of the rationale of the scheme as it provides for nonbinding monetary

evaluation which can be rejected by the applicant and proceed to trial and it is submitted

by the respondent that the applicants have failed to put any valid reason forward as to

why they should be entitled to simply disregard the procedures and be treated differently.

53. The respondents refer to the fact that a similar application was made in the application of

Flynn and was rejected by the Court in it decision when the Court stated

“in relation to Mr. Gordon’s submissions that the scheme depends upon consent,

that is correct up to a point. The Court did in December 2015 invite the parties to

utilise the ADR process under Order 56a(2)(1)(i). At the same time the Court put a

prohibition on cases being listed save by way of application to the Court. This

prohibition was in July 2016 altered to limit it only to those cases who apparently

were qualified for the scheme. This prohibition is I believe a reasonable exercise

for the Court in the management of its own business. It is proportional. A plaintiff

who qualifies for the scheme but does not wish to avail of it may apply to the Court

for a date for trial. Without in any way fettling my discretion, I would be inclined to

the view that such a plaintiff would have to have good reason for this application.

If such a plaintiff succeeded in having the matter listed for trial rather than proceed

to ADR and if such a plaintiff were successful in this trial he would of course have to

deal with the issue in relation to costs that is provided for in the amendment to

Order 99. I am not persuaded that any case which qualifies for the ADR has been

demonstrated to have been delayed in any different manner or to any great degree

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than would have occurred had they applied to have a trial date been fixed in the

Court. If any of the cases which have not yet progressed satisfactorily but which in

principle qualify for the ADR scheme an application for trial date in Court were

made, undoubtedly the defendants would be able to say that the cases were not

ready for trial as the paperwork including medical records and discovery etc had not

been complied with, accordingly I do not find the applicants have demonstrated any

real denial of right of access to the Court. …I do not accept the submission on

behalf of Mr. Gordon and absent his solicitor’s consent now to any of his cases

being entered into it that the scheme is ultra vires. The scheme remains. If Mr.

Bradley’s clients do not want enter it, they can of course make application for a trial

date to the Court at which stage the Court would want to be informed as to the

reasons the scheme was not being utilised.”

54. Further the respondent submits that the wording of the scheme is clear and in particular

clause 9.1 is clear that following a submission of a completed Form B both the claimant

and the DePuy shall not take any active steps in existing proceedings concerning the

claim before an evaluation has been issued etc.

55. In relation to the further submission by the applicants for a trial date because of the

alleged manner in which their claims were processed within the ADR scheme DePuy

submits that the evidence demonstrates that any delay in processing the claims has been

solely due to the unwillingness of the applicants and/or the solicitor to engage in the

process, the respondents also dispute whether that the submission that clause 9 should

be deleted.

56. The respondent submits that there is no evidence to suggest that involvement of the

plaintiffs with ADR has caused any delay rather it is the manner in which the applicants’

solicitor has declined to engage with the scheme and declined to provide records or has

declined to have plaintiffs medically examined that has caused the delays to these

applicants.

57. The respondents further submit that the application is not in reality to give directions as

to the provisions of clause 5 or clause 9 but rather to fundamentally alter and disrupt the

scheme and that to allow this application in whole or in part it would be unfair to those

who have already participated in the scheme and no good reason has been demonstrated

why it should be done. The applicant contends that there is absolutely no prejudice

demonstrated by any of the applicants in remaining in the scheme and the applicants

accept the decision of this Court in Flynn that any plaintiff can apply to the Court for a

trial for good reason.

Decision

58. The scheme as finally approved by order of this Court on 16th October, 2016, came to

finality after a number of applications to the Court in which all of the solicitors for

claimants were represented and were either heard or were entitled to be heard including

Mr. Bradley, who was represented and on whose behalf submissions were made as to the

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nature of the scheme. It was clear to the Court that Mr. Bradley from the beginning was

not enamoured by the scheme as it was approved.

59. A number of his clients however entered the scheme. In fact, Mr. Bradley’s firm has the

second largest number of claimants in the scheme in the country.

60. The Court is open to any amendment of the scheme if it were shown to be unworkable or

causing injustice as is clear from the decision of this Court in Flynn (above). I find that

the application has entirely failed to show any such injustice in the operation of the

scheme in relation to his clients.

61. I accept the submission by the respondents that this application is an attempt not to give

directions but to fundamentally alter the scheme. This alteration is of course possible

provided an injustice is demonstrated or good reason is shown.

62. I accept the submissions on behalf of the respondent that any delay in Mr. Bradley’s

clients is entirely caused by the refusal of Mr. Bradley to engage either with the scheme

or indeed in the process with DePuy. I do not enter into any possible personal dispute

between the solicitors involved but the plaintiffs cannot distance themselves from the acts

or inactions of their solicitor.

63. I accept the submissions from the respondent that in the Flynn case this Court decided

that the scheme as drafted did not breach the right of access to the Courts. The Flynn

decision was not appealed and I find that these applications are in certain respects, as

submitted by the respondents, attempts to revisit the Flynn decision.

64. Under the scheme clause 3 provides for criteria to enter into the process and clause 5

indicates that the claimant will not be required to prove certain matters and under clause

5.1.C DePuy is not entitled to raise certain defences. It is crystal clear that DePuy under

the scheme are entitled to raise issues as to causation and are entitled to seek further

medical records. This right is clear from the provisions of clause 5 in that 5.5 provides

that if they respondents believe that they can form a view as to the value and validity of a

claim that they will endorse Form B. Clause 5.7 refers to reports dealing with condition

prognosis and also causation and clearly these matters are potentially an issue in each

case. It is right and just where there are multiple possible causes of a plaintiff’s condition

and especially where there are significant claims for special damages which may or may

not be related to the revision of the hip that these issues are dealt with in the scheme.

65. I do not accept the submission of the applicant to the effect where reports as to causation

are submitted that, in the absence of a written judgment by the Evaluator a plaintiff

cannot be advised as to just what was or was not being compensated. The plaintiff in

those circumstances is in no different from a plaintiff who was given an offer by a

defendant or indeed is faced with a lodgement or tender. I accept the submissions from

DePuy that they have not abused this process.

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66. In order for DePuy to be satisfied that an evaluation is reasonable they as the paying

party will have to be satisfied (in the absence of any Court determination) as to the

reasonableness of any claims and in particular but not limited to where there are

substantial claims for special damages. DePuy are entitled to seek examinations and

records and reports and the provision of clause 5.12 clearly does not bind DePuy not to

obtain expert reports, it is aspirational and envisages that in many cases they will not

need to do so.

67. The scheme allows DePuy to put causation in issue and to seek to have records furnished

to them and to have the claimants medically examined. The rationale for these

requirements in the scheme is again that before DePuy are likely to be satisfied to agree

to an award or payment they will have to satisfy themselves as to the reasonableness of

the claim.

68. I reject the submissions in relation to the directions in relation to the claimants in

schedule one in relation to the issue of causation and also reject the application for any

directions in relation to additional medical records or examinations in relation to the cases

in schedule two.

69. It should be pointed out of course that if these matters get to trial the extent of the

records requested, the delay in getting same and the extent of examinations of the

claimants will be presumably much more extensive.

70. To accede to this application would be to fundamentally alter the scheme in circumstances

when over two thirds of those with claims have had them determined and a significant

number have been determined within the scheme. To do this would, I believe, risk DePuy

withdrawing from the scheme and would not be in the interests of justice and no

reasonable case has been made out in this application.

71. In relation to the request to amend the ADR process by the deletion of clause 9 I similarly

reject this application. Clause 9 does not provide for any exclusion of right of access to

the Court but merely puts a stay on the proceedings once the form has been completed

for inclusion into the scheme and imposes a requirement that neither party should take

any active steps in the proceedings, including the making or increasing of a lodgement, or

issue new proceedings before an evaluation has been issued or the evaluation has lapsed.

In this regard I reiterate what I stated in the Flynn case (above) and also reiterate that

the scheme is a reasonable attempt to manage court resources and to put in place an

easier and more rapid and more cost effective scheme to resolve these cases.

72. The ADR scheme was agreed to by DePuy only I believe because they (not unreasonably

in view of the one case subsequently decided) took a view that in cases to which the

scheme applied that they may well have difficulty in defending such matters (and I make

this observation in a general way without any judgment as to any particular case, as

different considerations as to liability might arise in other cases). The alternative to

establishing an ADR scheme was in effect for two cases a week to be listed for a period of

over 10 years before the litigation would be completed. This would have been extremely

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costly, extremely burdensome for the claimants, involve considerable delays and utilise

an excessive amount of scarce court time. It would of necessity have resulted in a

number of other unrelated cases involving sometimes catastrophically ill plaintiffs failing

to be heard or having their hearing dates considerably delayed. In order to enter into the

scheme, it was necessary that it be voluntary and also it was necessary that either side

could reject any evaluation.

73. I have come to the conclusion that it is chiefly because of the existence of the scheme

that many more cases have been settled between the parties as the scheme provided

ready indicators as to the likely value of claims which values are available to the parties.

Accordingly, any suggestion by the applicants that because the majority of claims have

been disposed of outside the ADR scheme by negotiations between the parties, in some

sense devalues the scheme itself, is erroneous. Without the existence of the scheme I do

not believe that the large number of cases that have been compromised by the parties

would have been done so.

74. In the Flynn case (above) I expressed some disappointment at the time at the progress of

resolution of these cases. Thankfully the number of resolved cases has considerably

increased since that time and I find that the disposal rate of cases is satisfactory.

75. The burdens imposed by the scheme, in relation to the ability of DePuy to make causation

an issue and also the requirements for medical reports are not any different from the

other claimants with different solicitors who have advanced their cases and in the main

disposed of them satisfactorily.

76. Accordingly, I find that the delays referred to in the various affidavits are entirely or

almost entirely due to the actions or rather inactions of Mr. Bradley.

77. I reject any application to amend clause 9 of the scheme. It is reasonable that once the

parties have entered into the scheme that they should be prevented from any steps until

the scheme has been exhausted. The fact that Mr. Bradley’s applicants have not had

their claims progressed is as I have indicated not due to any fault in the scheme or in

DePuy but rather in the applicant’s advisors.

78. I accept the submission on behalf of DePuy that “the reality as is evident from the

affidavits is that the present situation is a situation entirely of the applicants own making

and the way in which this argument is presented does not in any way reflect the true

position. These applicants could have progressed their applications within the process but

they have chosen not to do so. They could have rejected any evaluation if not satisfied

and then progressed their litigation. However, they have chosen not to engage with the

process and it would be wholly unfair to other litigants and would undermine the process

if they were permitted simply by reason of their refusal to participate to ignore reasonable

procedures put in place by the Court in the form of a process and the associated stay on

the proceedings.”

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79. As the respondents have submitted, none of the applicants have averred that they would

not be willing to consider or agree to any without prejudice offer prior to a conclusion of a

trial, none of them are insisting that to vindicate their rights they require a full

determination on liability by the High Court and none have indicated that if their cases

were excluded from the scheme that they would be ready for trial at any early date.

Accordingly, I reject the submission that the existence and operation of a process fails to

vindicate their personal rights by reference to the decision of Grant v. Roche Products

Ireland Limited & Ors. (above).

80. The right of access to the Court as referred to in Talbot v. Hermitage Golf Club (above) is

not an absolute one as is made clear from the judgment of the Supreme Court and the

Court is entitled and indeed sometimes required to have regard for the demands on the

Court in terms of resources and in managing litigation and to “foster their resources”.

81. The applicant further relies upon the decision of Ryan v. Walls Construction Limited

(above) on the basis of their submissions that their client cannot be forced into the

scheme. I do not find Ryan (above) to be any authority for the proposition as advanced

by the applicant. Ryan concerned whether the Court should force parties into mediation

who had not agreed to it. This case relates to an ADR process to which each of the

persons identified in the schedules to the notice of motion have actually applied. The

applicants applied knowing what the scheme involved. Having entered into the scheme

the applicants through their solicitor declined to process their claims they have declined to

engage with the respondents with a view to compromise their claims and have declined

following the Flynn decision to advance any case on an individual basis as to why

particular claims should be allowed to proceed to trial.

82. If the applicants have good reason to seek to proceed to trial, they have not articulated

such reason and they have had all the time since the Flynn decision to make such

application. I note and accept the submissions of the respondents that none of the

applicants have averred or asserted that they would not be willing to agree on any

without prejudice negotiations or none of them have insisted that to vindicate their rights

by way of a full determination of liability by the High Court. I conclude accordingly that

the applicants are not entitled to reply upon Grant (above) merely because they have

decided through their solicitor to remain idle in the belief that they can have a claim to a

trial merely because they have done nothing to advance their claims.

83. The applicants assert a general right to leave the scheme once they have decided to do

and seek differentiate this right to leave the scheme from the right as proclaimed in Flynn

to apply it to the Court in any particular case showing good reason why a trial should be

fixed. I reject that distinction as being entirely unreal. I stated in Flynn that any case

could apply to the Court for listing. My decision was not confined to those cases which

were not in the scheme. If the applicants believed from over literal interpretation of what

I stated, that I confined the right to apply to the Court only to those cases not yet in the

scheme, a simple application for clarification could have sufficed. Quite the opposite.

Since Flynn there has been no application from the applicants’ solicitor on behalf of any of

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his clients including the persons referred to in the schedules for such a date showing good

reason. If the applicants had, following the Flynn decision, had good reason to apply for a

trial date that would have been considered by the Court. The Flynn case clearly set out

the basis for the scheme and if any of these applicants had after the Flynn decision

persisted in the scheme giving normal cooperation I believe their cases would have been

disposed of well before now with an Evaluation made and a decision could have been

made on a case-by-case basis by each of the applicants as to whether they would accept

or reject the award.

84. Accordingly, I am not prepared on the basis of the evidence before me to grant any of the

applicants set out in appendix one or appendix two of the application to leave the scheme

are to have a trial date fixed. As I stated in Flynn the Court is willing to hear any

application for a trial date on an individual case by case basis and I shall consider such an

application on its merits. Good reasons have been advanced in some other cases, for the

scheme to be bypassed, and where good reasons were advanced the applications were

allowed. The fact that the applicant’s solicitor for his own reasons is not prepared either

to engage with the scheme or indeed engage on his clients’ behalf in any way with DePuy

of itself is not good or sufficient reason.

85. Accordingly, I reject the applications.

Result: Applications rejected.