Law: Within sight of justice

British families who claim their children were badly damaged by an American product have won the right to put their case in the US. By Amber Melville-Brown
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The Independent Culture
Jonathan Attenborough, 8, was born with a microscopic eye - a rare condition which has afflicted a number of British children. In some children the deformity has left them with no eyes at all. Six years ago the parents of these children discovered that there might be a possible cause of the children's condition. In America legal action had begun against DuPont, an American-based pharmaceutical company, for a similar condition allegedly caused by exposure to an agricultural spray manufactured by the company.

Jonathan's parents originally attempted to bring a legal action in Scotland, but were advised that they would have a better chance in America. They also came up against DuPont who made objections to the Scottish Legal Aid Board. "We were told that they had submitted two `not insubstantial booklets' to the Scottish Legal Aid Board outlining their objections. If we wanted to see them we had to sign a waiver that we wouldn't use the information in the main action. We refused," added Peter Attenborough, Jonathan's father and spokesman for the 40 Scottish families with similar conditions.

English lawyers ran into trouble six years ago when one of the legally- aided families received a barrister's opinion that it would be too difficult to gather evidence against the company in the UK but Mr Attenborough says: "We are confident that we can prove the chemical (manufactured by DuPont) causes this condition in human beings."

This month a number of British families won their fight to bring their action against DuPont in Delaware. The Delaware Appeal Court overturned a lower court decision dismissing a ruling which had blocked their litigation in the United States. According to the families' solicitors, the London firm Russell Jones & Walker (RJW), the English families decided to bring actions for product liability in the US as this is where the product originated, and there would be better opportunities for comprehensive discovery.

The impact of this case should be considerable in cases of cross border litigation and what is known as "forum shopping", that is choosing the most favourable jurisdiction in which to bring legal proceedings. In much the same way as a consumer decides to buy his Calvin Kleins from New York and his wine and cheese from Calais, so too may we see claimants reviewing the legal systems of potential jurisdictions before deciding where to sue.

Foreign personal injury claimants may be encouraged by this decision to litigate in the US where damages can be significant. "It is now arguable that foreigners from almost any country can sue DuPont [the manufacturers] for most, if not all, product liability claims in the United States," said Ferraro & Associates, the American attorneys representing the families.

Seven families from the United Kingdom and New Zealand, whose children were born without eyes (suffering from anophthalamia) or with only microscopic eyes (microphthalamia), had brought proceedings for product liability in the United States against DuPont, a US corporation whose principal place of business is Delaware. They alleged that their babies' deformities were caused by the mothers' exposure during pregnancy to the chemical benomyl, the only active ingredient in DuPont's Benlate, a fungicide used in crop sprays and pesticides.

The company denies liability.

All of the alleged exposures to the chemical had occurred outside the US, in the claimants' own countries. Although Benlate is a DuPont product, it is sold by other companies in other jurisdictions. DuPont's UK subsidiary had contracted for it to be sold by the UK agrochemical company ICI, and the British claimants allege that the deformities occurred as a result of exposure to the version of Benlate sold by ICI and used in garden fungicides and crop sprays.

Claimants in New Zealand say their babies' defects occurred as a result of years of ingestion, absorption and inhalation by the mothers while working at nurseries and botanical gardens for Christchurch City Council. The chemical had been sold to the council through DuPont's New Zealand subsidiary.

Both the UK and the New Zealand subsidiaries had obtained the necessary regulatory approval for its sale in those countries.

DuPont applied for the American action to be dismissed on the grounds that the United States was not the most suitable forum to hear the case. The appeal court clarified that it was not simply sufficient to show that "there is a better forum" in which the proceedings could be heard. In addition, the court said that the "drastic" decision to dismiss a case must only be made where to do otherwise would be a "manifest hardship to the defendant".

The families' American lawyers said they were "overjoyed that the courthouse doors have re-opened for the aggrieved victims". Russell Jones & Walker echoed their US counterparts' view that this may lead to the floodgates opening for untold similar actions, and said that DuPont may well have scored an "own goal" by making the forum application. Alan Care, litigation executive at RJW, said the decision bucks the trend of product liability cases in the United States, which are generally being thrown out by local courts. He said: "This may well be the watershed judgement for claimants seeking US jurisdiction."

Forum shopping is not confined to any one type of litigation, and it is frequently used in actions which deal with less tangible products, such as intellectual property rights, copyright, trademark and patents which cross border jurisdictions.

Defamation is another area in which applications are frequently made and it is not difficult to see why. Today, publications which may give rise to defamation actions can be bought or obtained almost anywhere in the world, not least because of their accessibility on the Internet.

London, as the world's much vaunted libel capital, is seen as the place to be for defamation claimants, who come here from each of the four corners of the world to sue, seemingly regardless of their nationality, the nationality of the defendant, or the subject matter of the libel.

One such action is set for appeal this summer in the House of Lords. The US magazine Forbes is appealing against the Court of Appeal's decision to allow the prominent Russian businessman, Boris Berezovsky, to bring his libel proceedings in Britain.

Berezovsky's action arose out of an article, widely published in the US but with a limited circulation of some 2,000 in the UK, alleging that he was linked to the Russian Mafia. It was not accepted at first instance that the United Kingdom was the appropriate forum. David Hooper, of London solicitors, Biddle, who acted for Forbes, said at the time that "the subject matter had nothing to do with the UK". Yet Berezovsky was able to persuade the Court of Appeal that he did have sufficient links to the UK to bring his action here.

The matter now rests with the House of Lords.

It may no longer be possible to hide behind national frontiers as it becomes easier for claimants to choose their venues for litigation.

Amber Melville-Brown is a solicitor at City media firm Stephens Innocent which advises its foreign clients on forum matters

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