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Law Report: Costly group claims struck out: AB and others v John Wyeth & Brother Ltd and others - Court of Appeal (Lord Justice Balcombe, Lord Justice Stuart-Smith and Lord Justice Peter Gibson), 26 November 1993.

Claims by plaintiffs in a group action against the prescribers of the benzodiazepine drugs, lorazepam and diazepam, were struck out as an abuse of process on the ground that the proceedings would involve great injustice to the prescribers who would be put to astronomical and irrecoverable expense in defending the claims which involved extremely modest benefit to the plaintiffs.

The Court of Appeal dismissed appeals by the plaintiffs in group litigation against Mr Justice Ian Kennedy's decisions to strike out their claims against the prescribers of benzodiazepine drugs.

The plaintiffs had brought actions against the manufacturers and marketers of Lorazepam, marketed as Ativan, and Diazepam, marketed as Valium, for personal injuries suffered from taking the drugs. They alleged that the drugs were potentially hazardous as they were addictive and induced dependency. In some cases the prescribers of the drug, consultant psychiatrists for whom the health authority was liable and general practitioners, were joined as alternative defendants. Mr Justice Ian Kennedy struck out the claims against the prescribers on the grounds that the actions were vexatious and an abuse of process because the irrecoverable costs incurred by the prescribers were out of all proportion to any benefit that the plaintiffs, who were legally aided, could obtain from litigation against them and there would be no benefit to the plaintiffs in pursuing their claims against the prescribers because any damages that the plaintiffs might recover would be consumed by legal aid charges.

The plaintiffs appealed on the ground that as a matter of law a viable cause of action should not be struck out on the basis that the benefit to the plaintiff was so small compared to the irrecoverable costs of the defendants as do to so interfered with the plaintiffs' right of access to the courts in cases where they had reasonable grounds for taking proceedings.

Anthony Scrivener QC and Peter Griffiths (Nelson & Co) for the plaintiffs; Stephen Millar QC and Sally Smith (Hill Dickinson, Liverpool) for the health authorities; Robert Owen QC and Philip Havers (Hempsons; Le Brasseurs) for the general practitioners.

LORD JUSTICE STUART-SMITH, giving the court's judgment, said that the claims against the prescribers were only to be pursued if the claims against the manufacturers failed and in that sense were contingent. If the court was satisfied that proceedings were oppressive and vexatious to the other party or involved serious injustice, it had power to strike out on the grounds that they were vexatious and an abuse of process. It was not for the legal aid board to decide whether proceedings funded by them were an abuse of the process of the court. That was exclusively a matter for the court. In the present cases, there was no question of principle involved; the sole object of the claims against the prescribers was to obtain financial compensation.

In most cases it would be quite inappropriate for the court to enter upon a cost benefit analysis. The court could not weigh the plaintiff's prospect of receiving pounds 1,000 against the defendants' costs of pounds 10,000 which might be irrecoverable; that could only be done at the trial. Alternatively it was a matter for the commercial judgment of the defendant whether he attempted to reach a settlement with the plaintiff. In doing so he had to take into account as part of the equation that the plaintiff was legally aided or impecunious.

This case was quite different. The prescriber defendants would be put to astronomical expense in defending these contingent claims. The benefit was extremely modest and in all probability involved nothing. That involved great injustice to the defendants. The judge was right to exercise his discretion the way he did.