Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 48
	OPINION OF LORD BRAILSFORD in the cause GRANVILLE BRIAN COOPER Pursuer; against MERCK SHARP & DOHME LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Hajducki, Q.C.; Wray; Murray; Thorntons Law LLP

Defender: The Dean of Faculty; Burnet; Burness LLP

13 March 2012

[1] This case called before me By Order on 5 March 2012. At that time the pursuer sought leave of the court to lodge an additional witness list out of time and, further, moved the court to discharge the diet of proof due to commence on 24 April 2012. I am not concerned in this Opinion with the motion to lodge an additional list of witnesses. The defenders opposed the motion to discharge the diet of proof.

[2] This is an action of reparation in which the pursuer maintains that he suffered loss, injury and damage as a result of taking in 2003 and 2004 a prescription drug, Vioxx, manufactured by the defenders. In short that drug is said to have been a defective product which materially increased the risk of a person taking it suffering a stroke. Those facts are said to have been within the knowledge of the defenders. The pursuer is said to have suffered a stroke as a result of consuming Vioxx.

[3] Vioxx was at or about the time the pursuer was prescribed it widely administered by doctors. The alleged deleterious effects of ingesting the drug have given rise to considerable litigation internationally. In particular I have been informed by parties that there has been product liability litigation in US jurisdictions raised by way of class actions. These actions, I am informed, have been settled extra-judicially. In Australia a single individual brought a class action on behalf of all users of Vioxx in that jurisdiction. My understanding is that following a decision by the Full Court of the Federal Court of Australia that action did not succeed.

[4] In Scotland actions arising out of the use of Vioxx have been raised by more than 200 persons, albeit the issues, and indeed the defenders, in these actions are not identical. The nature of the differences in these actions is not relevant to the issue I am presently considering. The parties are agreed that the issues, of both fact and law, raised in these actions are complex. It is, further, a matter of agreement that the documentation, much of it of a scientific or statistical nature, that will require to be considered by witnesses and the court during the course of proof in these cases is voluminous. These considerations apply as much to the instant case as to others in this group of cases. A further feature of the current case, and no doubt others in this group, is that professional witnesses from outwith the Scottish jurisdiction will be called to give evidence.

[5] Against the foregoing background it was appreciated at an early stage by parties and by the court that it would, both in the interests of proper utilisation of court time and in the more particular interests of the parties to these litigations, be unsatisfactory to permit them to proceed without some form of supervision or management by the court. The present case, and as I understand it, the other Vioxx cases have proceeded as ordinary actions. At present there is no system of case management in place in this court for ordinary actions. Faced by the obvious need for case management of the group of Vioxx cases Lord Hodge, as the administrative judge, devised a "bespoke" or custom built procedure designed to be applied to the cases in this category, which protocol became Practice Note number 2 of 2010 issued under the powers granted in Rule of Court 2.2 setting forth the procedure which would be applied to personal injury cases relating to the drugs Vioxx and Celebrex. The present case, plainly, fell within that category and was subject to the procedure stipulated in the Practice Note.

[6] Case management is nowadays widely adopted in many common law jurisdictions similar to Scotland for certain categories of case. It is not unknown in Scotland, having been utilised most prominently in the commercial court since the overhaul of that courts rules in 1994. The purpose of case management can probably be regarded as twofold. First, to ensure the most efficient use of public funds, by permitting the court from the inception of a litigation to take control and determine the issues upon which it will be addressed, the manner and presentation of evidence and the time to be permitted to parties to present evidence and argument. Second, effective case management should enable parties to address the issues which genuinely arise in a litigation in an effective and ordered manner. Overall if used properly case management should advance the interests of justice by allowing parties to have their disputes resolved more efficiently than would arise by simply allowing control of litigations to rest with the parties, free to indulge in tactics which, albeit legitimate, might be concerned with their own interests rather than the pursuit of justice.

[7] The present case was commenced in 2007. Legal Aid was granted to the pursuer in March 2009. The case management regime to which I referred in the preceding paragraph was instituted in 2010. Since that date the present case has been part of the regime and, as such, has been regularly before the court as part of the management system. On 9 November 2010 agents for the pursuer wrote to the defenders agents and advised that

"...Mr Cooper's case is fully prepared and ready to proceed..."

Subsequently at a By Order hearing on 14 January 2011 Mr Hadjucki QC for the pursuer indicated that he was happy with a suggestion made by the court that Mr Cooper's case be set down for proof for a period of one term in 2012. In light of that position the court consented to a proof being set down for period of one term in 2012, a timetable was established to regulate pre-proof procedure and a commission was granted to permit the taking of Mr Cooper's evidence in advance of proof. Mr Cooper's evidence was taken on commission over a period of 3 days in late March 2011. Subsequently, at a By Order on 1 April 2011 an adjusted timetable was established which, inter alia, fixed the date of the proof as 24 April 2012 and the 47 ensuing days. It hardly needs saying, but I observe that by the standards of this court that is an unusually lengthy diet of proof reflecting both the complexities of this litigation and, importantly, the willingness of the courts to devote resources to attempt to ensure the efficient disposal of this important litigation.

[8] So far as the court and for that matter the defenders were concerned preparation for the proof continued in accordance with the timetable finalised on 1 April throughout much of the remainder of 2011. There was a process of recovery of documents in the hands of the defenders which, probably not surprisingly in a large litigation, seems to have given rise to discussions between the parties. The details of that process are not germane to the issue now before me. Suffice to say that the defenders delivered the documentation to the pursuers, in as I understand it electronic format, in June and August 2011 albeit that the pursuers may not have been able to access the documents until they were granted by the defenders the licence necessary to use the electronic media in November 2011. The case was before Lord Drummond Young By Order, as part of regular case management, on 14 September 2011. At that hearing neither formally in court nor between parties in any extra-judicial communing was any indication given by the pursuers representatives that there was any anticipated difficulty in complying with the proof date set for April 2012.

[9] Formal indication of problems on the part of the pursuer complying with the timetable and proof date first emerged when on 23 November 2011 the pursuers enrolled a motion seeking discharge of the diet of proof. I heard that motion on 12 December 2011. Senior counsel for the pursuer submitted that the pursuer had experienced difficulties in identifying expert witnesses and, for that reason, were not in a position to finalise preparation for proof. The motion was opposed. I took the view that, first, having regard to the already outlined procedural history of the case no adequate reason had been advanced for the failure to identify expert witnesses and, second, that in any event it was premature to discharge the diet. Witnesses had, by the date the motion was heard, been identified and, there still being 4 months before the proof, there was every possibility that the pursuer could still be in a position to proceed on the due date. I continued the case By Order until 13 February 2012.

[10] On 13 February the pursuer renewed his motion to discharge the diet. Although progress had been made in the instructing of experts the grounds for the motion remained essentially the same as in December 2011. The motion was opposed. I refused the motion and continued the case By Order until a date to be arranged in March.

[11] On 5 March the motion to discharge was again moved by the pursuer and opposed by the defenders. The grounds advanced in support of the motion were the same as on the two previous occasions the motion had been moved albeit on this occasion, and for the first time, the pursuer produced letters from three of their experts which indicated those person's difficulties in producing reports and preparing for giving evidence within the timetables required by the court. Beyond this material senior counsel for the pursuer advanced the proposition that, if the pursuer's motion for discharge were not to be granted the pursuers legal representatives would have to consider withdrawing from acting, it being said, as I understand it, that they could not discharge the professional responsibilities incumbent upon them in the absence of professional evidence supporting the pursuers case.

[12] In my opinion it is highly unsatisfactory, particularly having regard to the procedural history of this case including the creation of a bespoke case management system, that the present situation has arisen.

[13] First, I do not consider that a pursuer should raise an action of this sort without being in possession of expert evidence which supports the case he seeks to present to the court. I would regard that requirement as fundamental. I accept that in any litigation the lapse of time, the exigencies of life and litigation, may give rise to changes in expert or the emergence of new issues which require seeking and obtaining additional expert evidence - I pause to observe that I have heard nothing along these lines in the present case - but would regard the existence of supportive expert evidence as a necessary pre-requisite to the commencement of a litigation based on an allegation of, essentially, defective product.

[14] Second, particular to this litigation, the pursuers representatives themselves appear, on the information before me, to have represented to the court that this case was ready to proceed to proof. Put another way the pursuer's representatives allowed the court to advance this case ahead of others in what I might term the "Vioxx queue", with all the implications that had in allocation of publicly funded resource, apparently in the knowledge that they did not have the necessary evidence to comply with the stipulated timetable.

[15] Third, the pursuer's counsel informed the court that throughout 2011 they had approached many potential experts, a figure of 40-45 was mentioned, all of whom had ultimately been unable to offer assistance. In the first place, as I have already made clear, I consider that the pursuer's representatives should have been in possession of suitable expert testimony to substantiate their case before litis contestation. Even if that view were incorrect I find it difficult to understand how the firm representation of preparedness to proceed could have been made in December 2010 given that there were, it seems, no experts in place. However, leaving those issues to the side, I find it very difficult to understand why the pursuer's representatives did not bring this matter to the courts attention before late November 2011. I accept the representation that during the course of 2011 a very significant number of experts who could not ultimately assist the pursuer were approached. It seems obvious from what I have been told that this was a process. It seems to me fairly obvious that a pattern of refusal, or inability, to assist must have emerged and become apparent to those advising the pursuer during the course of 2011. I consider it significant, and put some weight, on the fact that despite fairly strong pressure from myself senior counsel for the pursuer was unwilling or unable to put any specific timings on this pattern, beyond a concession in vague terms that by the "late summer" of 2010 there was a realisation of a problem. I observe that there was a By Order on 14 September 2011, which I would regard as late summer, where no attempt to raise this issue was made.

[16] Against the foregoing background I am of the opinion that it would not be consistent with the interests of justice to accede to the pursuer's motion, which I will refuse.

[17] In the context of a case which has been the subject of extensive ongoing case management I have heard no satisfactory explanation for an alleged unpreparedness for proof. I am not, in any event, satisfied despite what has been said that the pursuer will not be able to proceed on the allocated date. I should make it clear that I cannot have regard to any action that those representing the pursuer may take as a result of this decision.