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Herbert George Snell & Ors v. Robert Young & Co Ltd & Ors


Court of Appeal

Although decisions of Morland J in the organophosphate group litigation were apparently inconsistent, and although a note produced by the judge was a regrettable aberration, the overall intent and effect of the decisions was to strike out the whole of the litigation. 

Appeal by seven claimants in the organophosphate litigation from the order of Morland J dismissing their claims as an abuse of process. The claimants' solicitors had decided to discontinue the actions on the grounds that strike-out applications brought by the defendants could not be resisted. The strike-out applications led to two orders. By the first order on 31 July 2001, Morland J held that the group litigation was struck out as having no prospect of success. However it appeared from another part of the order, taken with comments made in his judgment, that seven of the claims were not to be dismissed as, in his judgment, those seven claims, although unviable at that time, might have become viable if those claims were provided with funding and expert evidence obtained. By a note of 23 January 2002, the judge confirmed "for the avoidance of doubt" that the seven remaining claims had not been struck out. However in the second order made on 29 January 2002, the judge expressly departed from his earlier decision and all claims on the register were dismissed. The appellants claimed that by the time of the second order, the judge had disabled himself from making it, as by then he had made it clear that he intended their particular claims to be allowed to continue. In the alternative it was submitted on behalf of the appellants that the judge was wrong in any event to dismiss those particular claims because: (i) the judge had failed to carry out a cost-benefit analysis; (ii) the judge was wrong to conclude that there was no reasonable prospect of funding for the individual claims to be continued; (iii) the judge was wrong not to allow further evidence to be adduced as to causation. 

HELD: (1) The order of 31 July 2001 could have been clearer and the note of 23 January 2002 was unfortunate. However, the two judgments could not sensibly be understood as concluding otherwise than that it would be an abuse of process for the litigation to continue. Therefore it made no sense to read the order as leaving the seven claims alive. The note of 23 January 2002 was a regrettable aberration. The judge had been correct on 29 January 2002 in stating that the intent and effect of his earlier judgments had been to bring all the individual claims to an end. (2) There was no need for a cost-benefit analysis in this case and the judge had been correct not to undertake such an analysis. (3) Once the Legal Services Commission had discharged the certificate for the group litigation, the judge had been entitled to conclude that similar funding would not have continued into the indefinite future. The LSC had adamantly refused to commit itself to such a course. (4) The causation argument was hopeless. The judge had been perfectly entitled to decline the appellants invitation to give them yet another opportunity of obtaining satisfactory evidence on causation despite all the acknowledged difficulties they faced. (5) For those reasons there was no basis on which the judge could be criticised for striking out the remaining claims as an abuse of process. 
Appeals dismissed.

[2002] EWCA Civ 1644 : [2003] CP Rep 25 : (2002) 146 SJLB 27

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