Organophosphate Group Litigation

United Kingdom

Snell and Others v Robert Young and Others - Court of Appeal Lord Justice Simon Brown, Lord Justice Buxton and Lord Justice Carnwath 21 November 2002

The Organophosphate Group Litigation, the "rump" of a legally-aided multi-party action concerning sheep dip products with just seven remaining claimants, was finally struck out by a Court of Appeal decision on 21 November 2002. The decision has important implications for group actions and shows that the courts are capable of taking a robust stance on what constitutes an abuse of process in claims involving controversial scientific evidence.

The action had continued since the early nineties despite the previous generic Claimant’s solicitors recommending in December 2000 that the organophosphate sheep dip litigation did not have reasonable prospects of success.

The Defendant manufacturers had applied for the cases to be struck under Part 24 of the CPR, but also on the grounds that the continuance of the action amounted to an abuse of process as the Claimants had failed to meet requirements to support their pleadings with medical evidence satisfactorily attributing the alleged injuries (a variety of what was said to be neurological and psychological conditions) through exposure to organophosphate chemicals.

In July 2001 Morland J rejected most of the Part 24 applications on the basis that he could not rule out the possibility that if the case proceeded to trial some expert evidence of causation might be obtainable. (The Court of Appeal described this approach as “somewhat overindulgent towards the Claimants”). However, the Judge did accede to the abuse of process application, and struck out all the claims, as taking an overview the claims, both individually and as a group, were unviable.

This “overview” concerned the absence of appropriate expert evidence to establish causation, the speculative nature of the claims themselves and the amount of delay and public money expended.

In the Court of Appeal it was argued on behalf of the Claimants that it was wrong for the Courts to consider the strength of scientific evidence on causation without a trial and further that a new approach to causation was to be adopted which would be based on the inability to ascribe any other cause to the Claimants’ injuries other than their exposure to the products ( “the exclusionary approach” ). It was further argued that the judge was wrong to consider the funding position of the claims and that a Group Litigation Order was an “administrative arrangement only”, so that if it becomes unviable, claims under it may still progress individually.

In a ruling which is of considerable importance for group actions the Court of Appeal confirmed that if Claimants are to be provided the benefit of being part of a Group litigation they will also incur the burdens of the outcome of that litigation.

The organophosphate Court of Appeal judgment affirmed the principle in AB & Others v John Wyeth that the court could consider the "overall viability" of the claims and carry out a broad cost benefit analysis. This was also extended to bar the progress of new cases without the benefit of radically new and compelling evidence. This judgment provides Defendants with some protection against weak group litigation claims which have not been expeditiously progressed and which have incurred disproportionate costs.

For further information, please contact Mark Tyler by email at [email protected] or by telephone on +44(0)20 7367 2568, Kajal Sharma by email at [email protected] or by telephone on +44(0)20 7367 2751 or contact Jessica Burt by email at [email protected] or by telephone on +44(0)20 7367 3589.