Worsley v Tambrands Ltd. [1999] EWHC 273 (QB)

EWHC-KB

Worsley v Tambrands Ltd.

[1999] EWHC 273 (QB) · 1999-12-03

MR. J. GRACE Q.C. and MS. A. GARRETT (instructed by Messrs. Gadsby Wicks, Chelmsford) appeared on behalf of the Claimant. MR. M. SPENCER Q.C. and MS. E. POWER (instructed by Messrs. Davies Lavery) appeared on behalf of the Defendant.

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MRS. JUSTICE EBSWORTH: This is a judgment on a submission of no case by Mr. Spencer Q.C. on behalf of the defendant in this action. I decided that the Civil Procedure Rules allow for such submissions to be made and that I had a discretion whether or not to put him to his election whether or not to call evidence. My attention was invited to the decision of Mr. David Foskett Q.C. in Mullan v. Birmingham City Council given at Birmingham on 27th May 1999. The learned Deputy High Court Judge reviewed the earlier authorities on the point and concluded the new procedural code permits of a more flexible approach to submissions of no case than prevailed before 29th April 1999, given the requirements of case management and the need to meet the overriding objectives in Part I of the Civil Procedure Rules.

I do not consider it necessary to determine whether the case management powers in Part III have any part to play in a submission of no case, but I am satisfied that if, in the circumstances of a particular case, the "overriding objective" will be better served by allowing a submission of "no case" without an election, then I have power to allow such a submission to be made. If there is a narrow issue determinative of the action which can properly be decided on the claimant's evidence alone, then it is obviously sensible and in the interests of both economy and the best use of the court's resources to decide it before embarking on the complex and expensive defence evidence which is not necessary for the determination of the narrow point but which would be necessary for the determination of the action should the submission fail.

This is such a case. The claimant must, to succeed, satisfy me that she can bring herself within ss.1 to 3 of the Consumer Protection Act 1987 or establish in negligence a breach of duty to her, and that without such a breach, she would have behaved differently. My decision on that must depend primarily on her evidence, together with the exhibits produced. Mr. Grace Q.C. agreed (as he had always taken the view that there was a narrow issue which ought to be tried first).

I regard it as unfortunate that by way of case management the parties did not seek the trial of this issue first. I also regard it as unfortunate that when the claimant suggested it belatedly at the outset of the trial on Monday, the defendants chose then not to agree to the course.

The claimant seeks damages for personal injury alleged to have been caused by the defendant. Her damages are agreed, subject to liability, in the total sum inclusive of interest of £35,000. She alleges that she suffered injury in the form of toxic shock syndrome ("TSS") due to her use of a tampon during a menstrual period in July 1994. It is not in dispute that she suffered TSS at that time and was admitted to hospital suffering from that condition. The issues for the court are whether her TSS was caused by her use of a tampon and, if it was, whether the defendant was negligent or in breach of the Consumer Protection Act 1987.

It is not in dispute that at the relevant time the defendant manufactured and put into circulation "Tampax Regular" brand tampon. The claimant alleges that she was using that brand and type of tampon during the menstrual period in which she was admitted to hospital suffering from TSS. There is no dispute about that, and it is plainly established by the evidence.

TSS is a rare illness, so most medical practitioners will never have seen a case. It is caused by toxins produced by certain strains of Staphylococcus Aureus ("S.A."), a common bacteria which lives quite harmlessly on the skin and in the nose, armpits, groin and vagina of about one third of the population at any one time. It occurs in men, women and children, and in women it occurs in non-menstruating women, menstruating women using tampons and menstruating women using hygiene protection other than tampons. A toxin produced by S.A., TSST-1, is believed to be responsible for causing most if not all menstrually-associated cases of TSS.

The issue of causation is highly contentious, and involves a conflict of expert evidence as to whether or not the claimant's TSS was caused or contributed to by the Tampax Regular tampon she was using. The defendant's case is that no causal connection was shown either by the claimant's evidence or at all. There is at most a statistical association between tampon use and TSS.

I have heard two of the claimant's experts, physician Dr. Delamore and Professor Sussman, who is a microbiologist. I have read the defendant's reports from Professor Macrae on the epidemiology of TSS with reference to tampon use; Professor Schlievert, a professor of microbiology; Professor Batchelor, an immunologist; and Dr. Brewer, consultant to the TSS Information Service. I emphasise that they have no part to play in this judgment, and I have deliberately given no indication of any view I have formed as to the claimant's expert evidence.

THE STATUTORY FRAMEWORK

I turn first to the statutory framework. Section 2(1) of the Consumer Protection Act 1987 reads:

"Subject to the following provisions of this Part, where damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) applies shall be liable for the damage."

The criteria, therefore, for liability is defectiveness, not fault. Section 3(1) of the Act defines the meaning of "defect" and reads:

"Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes `safety', in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks after damage to property, as well as in the context of risks of death or personal injury."

Section 3(2), which is material for these purposes, reads:

"In determining for the purposes of sub-section (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including - (a) the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product; (b) what might reasonably be expected to be done with or in relation to the product; and (c) the time when the product was supplied by its producer to another;

and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question."

The test therefore is objective and the Act imposes a form of strict liability. The claimant must show that the tampon was defective within the meaning of s.2 and that the damage was caused wholly or in part be the defect. This case turns on the nature and extent of the warning and information accompanying the relevant tampons. Were they adequate to warn the claimant of the potential risk associated with tampon use, having regard to the nature of the risk and the potentially life-threatening consequences of TSS?

THE HISTORY

I turn to the history of the matter, as given to me by the claimant in her evidence and in her two witness statements dated 1st April 1998 and 19th November 1999 and her pleaded case. Mrs. Worsley is 34. She is married with two children. She is an intelligent graduate primary school teacher. She has used tampons since she was 15 or 16 years old - - that is, from two or three years after she commenced to menstruate. Soon after that she began to use Tampax Regular. When she first used that brand in 1980 or 1981, she read the leaflet to find out how to use them and thereafter maintained a rigid hygiene routine in respect of her use. It was her habit to change her tampons every three to four hours, save overnight. When she first read the leaflet - - and I have not seen one printed before 1982 - - she recalls reading about toxic shock syndrome and gaining the accurate impression it is extremely rare. She said she assumed you could only get it if you retained a tampon - - that is, kept it in too long.

In 1985 or 1986 Mrs. Worsley read a magazine article about a woman who suffered from TSS with grave consequences. That did not cause her to alter her view about the need to retain a tampon in order to suffer TSS, but it did cause her to reread the leaflet inside her current tampon box. She had, on occasion, looked at the leaflet between 1980/81 and 1985/86, but noticed no changes in it. She concluded TSS was serious, with rapid onset, and that a sufferer would be seriously ill. She did not retain the specific symptoms in her mind, but thereafter kept leaflets to read in case she became seriously ill. In her witness statement she said that 1985/86 until 1994, she was "unaware the leaflet had changed." In 1985/86 she had, according to her evidence in chief, formed the opinion all symptoms needed to be present for TSS and assumed that all she needed to do was follow the advice given(a) to use the lowest absorbency tampon suitable for her flow,

(b) to follow the hygiene requirements and

When the claimant was cross-examined she said that, after reading the article, she recognised TSS as a real possibility. She would have "skim read" the leaflets between 1985/86 and 1994, she said she thought about every third or fourth or sixth month to see if there was a change. If she did not notice a difference (and she did not) she simply kept the leaflet in the box. She almost certainly, she said, has not read the current 1994 leaflet, by which I mean the leaflet in the packet she had purchased in June 1994. Any illness when menstruating would have caused her to check the leaflet, but she was never ill. She was not consistent about her leaflet reading.

On the morning of Wednesday of this week, her account was that if she had noticed a change in the leaflet - - that is, in format - - she would read it. Therefore, when, as in 1990, (which is p.4 of the green bundle of leaflets), there was a wholly different presentation, she could not have failed to notice it and would therefore have read it; but she was unlikely to have compared it with the previous leaflet, which I accept, and could not say that she had picked up the fact that the symptoms had been expanded. The July 1991 leaflet is again different, and she said she would have read it. She had no recall of ever seeing the November 1991 leaflet - - which is so striking in design logo that I believe her. The 1993 November leaflet, which is at p.7 in the green bundle, was current at the time of the illness. It is in fact different from that of 1991, but she told me that she would not have noticed that fact.

Now what did the leaflets tell the claimant up to the time of her illness? In 1982, the leaflet said(a) that TSS is a rare disease which can occur in menstruating women,

(b) that the symptoms were a sudden high fever, a temperature of over 102 degrees, vomiting and/or diarrhoea,

(d) if you have the symptoms, see your doctor and stop using a tampon until you have have his advice, and

(e) that these were sensible precautions. The 1983 leaflet was essentially the same. The 1985 leaflet, which the claimant accepted she would have read after the magazine article, says essentially exactly the same.

There is nothing in those leaflets to suggest that you could only get TSS if you retained the tampon beyond the advised period, and nothing suggesting rapid onset leading to death or collapse within 24 to 48 hours; nor anything, in my judgment, from which that could be inferred. The leaflet did say that the very rare disease was caused by bacteria, and not tampon use. All the leaflets referred to a sudden, high fever. The 1990 leaflet is printed blue on pattern blue and has a format I find difficult to read, but I accept that the claimant probably did read it. She knew it expanded the symptoms after telling the user to change tampons of whatever absorbency after four to six hours. It then dealt with TSS. It explained the disease in a more expansive way, adding a longer list of symptoms, including, by this time, a rash which was similar to sunburn, dizziness and fainting or near fainting when standing up.

The 1991 leaflet is a multilingual leaflet which the claimant said that she would have read. That leaflet, in the column in the English language, reads:

"Personal health advice. Toxic shock syndrome (TSS). TSS is a rare condition that has been associated with tampon use. TSS can rapidly progress from flu-like symptoms to a serious illness that can be fatal. The warning signs of TSS include a sudden high fever, usually over 102 degrees Fahrenheit, 39 degrees Celsius, vomiting, diarrhoea, a sunburn-like rash, sore throat, dizziness, fainting or feeling faint. If you have any of these symptoms and are using a tampon, remove it and contact your doctor for immediate treatment, telling him you have been using a tampon. Do not use a tampon again without your doctor's advice."

It then went on to deal with the lead causes of TSS and ends up by saying:

"The risk of TSS is believed to be related to tampon absorbency. Always use the lowest absorbency for your flow."

I am satisfied that the claimant did read that leaflet, notwithstanding the columnar, multilingual presentation. Therefore, it is the likely origin of her belief in rapid progression towards that which is possibly fatal.

The 1993 leaflet had an almost identical presentation. After listing the symptoms it reads:

"If you have any of these symptoms and are using a tampon, remove it and contact your doctor for immediate treatment, telling him you have been using a tampon. Do not use a tampon again without your doctor's advice."

And finally:

"The risk of TSS is believed to be related to tampon absorbency. Always use the lowest absorbency for your flow."

The claimant probably did not read it in or about July 1994, but had possibly read it earlier. In any event, the phrase, "If you have any of the listed symptoms, remove the tampon and see your doctor" appears in the 1991 leaflet which she certainly did read. The 1993 leaflet adds one matter of relevance to the 1991 leaflet in that it deletes sore throat under symptoms and adds muscle ache.

The boxes for 1991 to 1994 inclusive directed attention to the enclosed personal leaflet for personal safety, and in 1994 read:

"Attention: Tampax are associated with Toxic Shock Syndrome (TSS). TSS is a rare but serious disease that may cause death. Read and save the enclosed leaflet."

I am satisfied and find as a fact that at the inception of her period on 9th July 1994, the claimant was familiar with that warning and with the symptoms set out in the leaflet of the 1993 November design.

EVENTS OF JULY 1994

I turn to the events of July 1994. On Saturday, 9th July 1994 the claimant's period began and she inserted a tampon which had been purchased in a box of 32 in June of 1994 at Sainsburys in Preston. That evening she went to a wedding reception. I accept that she would have put in a fresh tampon on going to bed on return. She woke at four a.m. with diarrhoea and vomiting which she thought was food poisoning. She continued her tampon use and did not trouble her doctor. That afternoon she went on a three-hour visit with her family. On Monday, the 11th, notwithstanding the continuing diarrhoea, she went to work, staying until a governors' meeting and returning home at about nine p.m. She went to school on the 12th and the 13th, attending parents' evenings and returning home at about six or seven p.m.

In her witness statement, the claimant said that she felt confused and unco-ordinated. That was not challenged when she gave evidence and I accept it. On the Tuesday evening she switched from a tampon to a sanitary pad for a period of two or three hours. That was before she spoke to her husband about her condition. She gave no specific explanation for that change. It does not appear in her witness statement of April 1998 and the inference to be drawn from that act, and I do draw it, is that she recalled the leaflet warning to remove the tampon if any of the TSS symptoms were present. Her evidence was that she dismissed the idea of TSS from her mind because she was not feeling seriously ill. She was recovering and her understanding of TSS was that by the third day of onset she would be dead.

The claimant talked to her husband about TSS. He has not been a witness. In evidence she then told me she then checked the box for the leaflet. It was not there because her husband had thrown it away when he had opened the box of tampons for her, I think on the Saturday. If the leaflet had been there, she said she would have checked it. She thereafter checked the box which contained no details, merely containing the warning that TSS is potentially fatal, and to read the enclosed leaflet. I accept that she may have checked the leaflet, had it been available, at some point while she felt unwell, and that she may well have done that on the Tuesday evening. I do not accept that she looked at the box to check its information or that the box played any part in her conduct during that menstrual period. Neither her witness statement nor her evidence in chief contain any such suggestion and I regret to say that that is a matter that she has now convinced herself about after the event.

I do observe that the warning on the box, in the context of her symptoms and the previous reading of the leaflet, did not cause the claimant to trouble her doctor, even though she says that she was at the time concerned about possible TSS. Her explanation was that she had excluded TSS on a time basis, but that if she had read the leaflet at the time it would have caused her to check her condition. If that is so, the immediate cause of the failure to react to her symptoms is the loss of the leaflet.

On Thursday, 14th July, the claimant went to work in the morning. The diarrhoea continued. She had, as she drove to work, the flu-like symptoms which, in her second witness statement, she categorised as muscle aches. Whilst I think she may have chosen the latter words as a result of considering the strength of her case between the two witness statements, I accept that she did on the Thursday have flu-like symptoms which would have included muscle ache. She also had diarrhoea, and, by lunchtime, a bad headache. She drove home and at five p.m. visited her doctor, clearly being fit to do so. Dr. Brierly examined her abdominally and asked if she was menstruating. She confirmed that she was, but made no mention of her tampon use or her concern about TSS. Dr. Brierly confirmed that she had food poisoning and sent her home to bed. Her condition then rapidly deteriorated until, on Saturday, the 16th, she was taken to hospital in a collapsed state, so ill that she almost died. She was suffering from TSS. Whilst in hospital, an infected tampon was removed from her vagina, and a vaginal swab showed a heavy growth of S.A.

Has the claimant established prima facie that the defendant's defective product caused or contributed to the TSS, or, in the alternative, that the nature and extent of the warning was so deficient that it amounted to a breach of the defendant's duty of care to her? The starting point must be that there was a warning on the box of Tampax Regular that she purchased. That notice directed the user to the leaflet contained within the box with the warning to "read and save the enclosed information." There was a leaflet in the particular box, the content of which I have already set out. Those warnings were entirely familiar to the claimant. She read that on the box during the relevant menstrual cycle, she says. The only reason she did not read that in the leaflet was because her husband had thrown it away.

The claimant complains that the defendant ought to have foreseen that the leaflet might not be kept and/or read and that as a consequence the health warning, including the list of likely symptoms and advice how to react to them, ought to have been printed in full on the outside of the package. I do not accept that. No expert evidence as to warnings on and in packaging have been adduced by the claimant, and I am asked to deal with the matter as effectively a jury point. As I say, I put out of my mind the defendant's witness statements on the issue.

No box produced in evidence to me bears the full health information on its exterior, and so far as I am aware that is not the United States practice. The 1994 United States box for the size bought by the claimant is at p.20 of my bundle, and bears the same external warning as that in the United Kingdom and internationally. As a matter of common sense, I conclude that the duty of the manufacturer, and that which persons generally are entitled to expect in relation to the product, is that the box contains an unambiguous and clear warning that there is an association between TSS and tampon use and directs the menstruating woman to the internal leaflet for full details.

TSS is a rare but potentially very serious condition which may be life threatening, but it is necessary to balance the rarity and the gravity. That balance is reasonably, properly and safely struck by the dual system of a risk warning on the box and a full explanation in the leaflet if the former is clearly visible and the latter is both legible and full.

I turn to the leaflet. The claimant accepted in evidence, as I do I, that the content of the leaflet is true, accurate and essentially complete. Her only complaint is that it was not sufficiently emphatic, and it did not make clear that the onset of the illness may be slow and present with symptoms which may be mistaken for those of other illnesses such as food poisoning. I do not consider the allegation of ambiguity to be sustainable. The warning reads, after listing symptoms including vomiting and diarrhoea:

"If you have any of these symptoms and are using a tampon, remove it and contact your doctor for immediate treatment, telling him you have been using a tampon."

Had the claimant not been unfortunate enough to lose the leaflet, she would have read those words. She is a highly intelligent woman, quite capable of taking them at their face value, and if so treated they appear to me to be quite clear and sufficient to draw the attention of the user to the necessary course of action in the presence of any one of the symptoms. There is nothing in the choice of the wording in the relevant leaflet, or in any earlier one the claimant had read, to justify her forming the view she says she did, that if she was not dead or gravely ill within 24 to 48 hours of the first symptoms she did not have or was not at risk of TSS. There is a plain warning that TSS can progress rapidly from flu-like symptoms to a serious illness which may be fatal. It is certainly plain enough to lead a user to understand that if she had, during tampon use, diarrhoea, vomiting or flu-like symptoms, she should see her doctor, having removed the tampon, and tell him she had been using one.

Mrs. Worsley did, on the Tuesday evening, remove her tampon for two to three hours; but she chose to replace it and not to go to her doctor on that day. On the Thursday, when she did go to the doctor, she did not tell him she was using a tampon notwithstanding that she had told him when he asked that she was menstruating. I cannot understand why she did not tell him, save to the extent that, having lost the leaflet, she had forgotten about the content of the warning. The loss of the leaflet is not a matter on which she can rely. It is, however, in my judgment, the reason why she did not act upon the warnings.

The claimant's main complaint is that the leaflet was designed in such a way that it did not have a sufficient impact upon her, whereas the US warnings current in 1994 were more prominent, fuller and would have had an impact. It is true that the 1994 United States leaflet is a single-language document with the warning in larger type than the contemporary United Kingdom leaflet. It is also contains advice on how to reduce the risk of TSS by alternating tampon and towel use, or by not using tampons at all. As a design, I accept that the United States model is better than the United Kingdom one. But that is not the point. The issue is not whether the U.K. pattern could have replicated the United States one (I am prepared to accept that it could, in the absence of evidence to the contrary), but whether the United Kingdom one falls below the statutory or common law standard by reason of its design and/or contents, and, if it did, whether a different design would have caused the claimant to have acted differently.

The United Kingdom leaflet is, because it is multilingual, set out in the columns of relatively small print in blue type on white. There are four columns on the page which contains the English language warning. The symptoms of TSS are in bold type. I consider the original to be legible without undue effort. There is no evidence before me to suggest that multilingual documents are less likely to be read than single language ones. I would have thought that we are all used to them by now. I reject the argument that they fall below the standard which persons might generally be entitled to expect.

Because the claimant lost the relevant leaflet, she is driven to argue that either the full warning should have been on the box, which I have rejected, or that over a period of years the warnings on the leaflet should have been designed to make a greater impact on her memory. On her own evidence, she had possibly read the leaflet which would have been current in July 1994, so she was not dissuaded from doing so by its layout or style. She had read the symptoms and the very specific warnings as to how to react to them. She decided her symptoms were not TSS and sadly did not react to them until it was too late a stage.

If the claimant had had the leaflet available to her, as I say, I accept she may have reacted differently. That is the purpose of the leaflet in every pack. Whilst I accept that reading leaflets repeatedly over the years may have a cumulative effect upon the reader, I do not consider that they should be designed so to do. The impact needs to be fully present in each one. A different design or content in earlier leaflets would not have altered the claimants's reaction. In July 1994 she knew what they said. Had a leaflet been before her, it would have been sufficient to direct her attention to the need to remove her tampon and see her doctor and tell him, had she chosen to do so.

The additional United States advice in relation to alternating tampon and towels or not using them at all was not material to this claimant. Indeed, her evidence that it would have affected her conduct was unconvincing, and I reject it. Mrs. Worsley had been using Tampax Regular for many years, and doing so in accordance with the health and hygiene warnings supplied with them. She knew from the packet and from the earlier leaflets of the risk of TSS and of the need to keep the leaflets referred to when necessary.

I am prepared to accept that had the claimant kept the leaflet in the packet purchased in June 1994 she would have looked at it on the night of Tuesday, 12th July. On balance of probabilities she would not have looked before that. On the Sunday, because of the co-incidence of the wedding the previous day, she would have attributed her condition to food poisoning and not connected it with tampon use. I consider it highly unlikely that she would have troubled her doctor on Sunday, or any day thereafter before the Thursday. She was recovering and had no new symptoms until Thursday. I accept that had she then had access to the leaflet, she may well have told her doctor that she was using a tampon. Whether he would have given different advice, I do not know because I have not heard him. I rather doubt it.

The reality of this case is that the claimant had lost the relevant leaflet and, for some inexplicable reason, misremembered its contents as to the onset of the illness. That does not render the box or the leaflet defective, and the claim must fail. The defendant had done what a menstruating woman was, in all the circumstances, entitled to expect:(1) they had a clearly legible warning on the outside of the box directing the user to the leaflet;

(2) the leaflet was legible, literate, and unambiguous and contained all the material necessary to convey both the warning signs and the action required if any of them were present; and

(3) they cannot cater for lost leaflets or for those who choose not to replace them, as the claimant could have done after the Tuesday when she discovered the loss.

In those circumstances, whilst it is a sad fact that the claimant suffered a frightening and near fatal illness, there must be judgment for the defendant on its submission of no case to answer.

MR. SPENCER: My Lady, I then ask for judgment on the claim.

My Lady, what I also ask has been reduced into writing in the form of a draft order. Can I pass up a copy to your Ladyship?

MRS. JUSTICE EBSWORTH: Thank you.

MR. SPENCER: My Lady, what we seek at this stage is that your Ladyship should adjourn the question of costs to some further occasion. The reason that we do that is in relation to the question of the position of the insurers who have provided the claimant with legal expenses insurance in this case. At the moment we are, as your Ladyship I think knows, entirely in the dark. We do not who they are. We do not know the terms of any policy. We do not know whether there is -- what the limit is upon the policy, though it has been said that there is a limit upon it.

That being the case, as I understand the present state of the law we would probably only be able to go against the legal expenses insurers if the indemnity under the policy has been exceeded or is likely to be exceeded if we could demonstrate exceptional circumstances. If, for the sake of argument, there was available under that policy adequate funds to indemnify both claimant and defendant in respect of their costs, then there is authority for the proposition that it would be convenient for the court to make an order under s.51 direct to enable us to recover those costs directly from the insurers concerned, though in those circumstances there probably would never be a necessity for an order in fact.

So what we seek at this stage is simply for you to adjourn the question of costs, but to order the claimant to provide us with disclosure of the relevant documents that would enable us to ascertain the position so far as the legal expenses insurance is concerned, what cover it provided and pursuant to what terms and conditions, but also to provide documents relating to the control or management of the claim by those insurers, the limit of cover provided and also any advice that has been given by the legal adviser to those insurers in relation to the funding and/or merits of such claim. The reason for that is that if we needed to establish exceptional circumstances, we would again, on my understanding of the law, have to show that the insurers had continued to provide cover in circumstances when it was unreasonable for them to do so in the context of this case.

If your Ladyship wishes, I can take your Ladyship to the judgment in the Court of Appeal that addresses these questions, and take your Ladyship very shortly to the parts of it

MRS. JUSTICE EBSWORTH: Yes, that would be helpful.

MR. SPENCER: My Lady, it is the case of Murphy v. Young's Brewery

(1997) 1 WLR 1591

. The Court of Appeal consisted of Lady Justice Butler-Sloss, Lord Justice Phillips and Sir John Balcombe. If I can just read the headnote so that your Ladyship gets the brief facts:

"The plaintiffs were insured under a legal expenses policy which covered them for their legal costs up to a maximum of £25,000 in any action which they might reasonably bring. They brought an action for unfair dismissal against the first defendant in which their own legal expenses exceeded £25,000. The action was unsuccessful and the first defendant was awarded its costs of £42,000 against the plaintiffs which, as the plaintiffs had no further indemnity under the policy, they could only afford to pay instalments. The first defendant joined the insurers as second defendant to the action in order to apply for a costs order against the insurers pursuant to section 51 of the Supreme Court Act 1981. The insurers denied that they could be under any liability to meet the first defendant's costs as the cover had been exhausted. The judge found that there were no grounds for making an order for costs against the insurers and rejected the application.

"On the first defendant's appeal:

Held , dismissing the appeal, that an order under section 51 that a non-party pay costs was only justified when exceptional circumstances made such an order reasonable and just; that legal expenses insurance was a respectable and well recognised form of insurance which was in the public interest; that the existence of legal expenses insurance with a limit of cover that had been exhausted did not, in itself, make it reasonable or just to order the insurers to pay the costs of the adverse successful party; that, while the insurers had funded the litigation under a commercial agreement, they had no interest in the result, had no initiated the litigation, had exercised no control over the conduct of the action and had been contractually obliged to provide funds up to the limit of cover; and that, accordingly, there were no exceptional circumstances to make it reasonable or just to order the insurers to pay the first defendant's costs."

My Lady, the judgment of the Court of Appeal is in effect given by Lord Justice Phillips and this judgment was agreed with by two other justices of the Court of Appeal. I can take your Ladyship to the relevant parts of the judgment of Lord Justice Phillips I think quite quickly. If under the facts your Ladyship goes to p.1594 at the top, the insurance cover is set out at letter B:

"The Murphys were insured by Sun Alliance under the American Express Legal Expenses Plan. The relevant cover was expressed as follows:

`Legal Benefits.(a) Fees expenses and other disbursements reasonably and properly incurred by the appointed representative, [a solicitor, firm of solicitors or appropriately qualified person appointed to act for you] in connection with any claim or legal proceedings including any costs incurred by us.

(b) Costs and expenses of expert witnesses.

(c) Any costs payable by you following an award of costs by a court or tribunal in connection with a claim or proceedings.'"

Then cover was limited to £25,000 and was subject to the following conditions:

"Our consent to pay legal benefits must firstly be obtained in writing. This consent will be given if you can satisfy us that: (i) you have reasonable grounds for pursuing or defending the legal proceedings or (ii) it is reasonable for legal benefits to be provided in a particular case. The decision to grant consent will take into account the opinion of your appointed representation as well as that of our own advisers. We may require you to obtain an opinion of counsel on the merits of the claim or legal proceedings. If we refuse consent, you will be informed of the reasons for us doing so. If you disagree, you may invoke the arbitration procedure."

So those were the terms there, my Lady, and obviously that is one of the things that we wish to obtain in respect of this case.

As your Ladyship knows, in Murphy the limit was exceeded, perhaps not surprisingly, and if your Ladyship goes to the bottom of the same page just above H:

"Sun Alliance for their part denied that they had exercised control over the litigation. They argued that legal expenses insurance was in the public interest and that limits of cover were a usual and necessary feature of such insurance. Costs should only be ordered against a non-party in exceptional circumstances. There were no such circumstances in the present case and it would be contrary to public policy to hold Sun Alliance liable to pay costs beyond the limit of the cover."

The judge then gave his judgment, and I do not think it is necessary for me to take you to that because Lord Justice Phillips considers it later.

If your Ladyship then proceeds in the judgment to p.1598, "Procedure", because I think this is relevant for your Ladyship to read, just at letter C:

"In the present case, Youngs joined Sun Alliance as second defendant in order to make an application for costs against them. Sun Alliance objected, unsuccessfully to this joinder. They have applied for leave to appeal against the order permitting the joinder. At the time when it was considered that costs could only be ordered against a party to the action it was objectionable to join a party simply to establish jurisdiction to make a costs order against him: see the Supreme Court Act"

MRS. JUSTICE EBSWORTH: No, actually, the Supreme Court Practice.

MR. SPENCER: Yes, now Supreme Court Practice 1997.

"Now that it is clear that a non-party can be ordered to pay costs, it is plainly necessary for appropriate procedural steps to be taken to bring the non-party before the court so that he can make representations and, where appropriate, adduce evidence. It seems to me that the joinder of Sun Alliance effected in this case was a convenient way of achieving that end, although it may be that an originating summons would have been a more appropriate alternative."

So, my lady, we will need to give some thought, if we wish in fact to go down that road, as to the appropriate way

MRS. JUSTICE EBSWORTH: I think that none of this arises until it is established as a matter of fact that there is a limit on the policy and that limit has been exceeded.

MR. SPENCER: Yes, indeed. Absolutely, my Lady. Then I think I can go on in the judgment. Then if your Ladyship goes on in the judgment, if your Ladyship goes to p.1601

MRS. JUSTICE EBSWORTH: Yes, I am there.

MR. SPENCER: just above D,

Lord Justice Phillips continues:

"The time has come to attempt to formulate some principles in the light of those decisions. My conclusions are as follows.

(1) In Giles v. Thompson . . . Lord Mustill suggested that the current test of maintenance should ask the question whether:

`there is wanton and officious intermeddling in the disputes of others in where the meddler has no interest whatever, and where the assistance he renders to one or the other party is without justification or excuse.'

When such a test is satisfied, I would expect the court to be receptive to an application under section 51 that the meddler pay any costs attributable to his intermeddling.

"(2), whereas a non-party has supported"

no, my Lady, this is not meddling, and we can put it out of our minds.

MRS. JUSTICE EBSWORTH: Yes.

MR. SPENCER: "Where a non-party has supported an unsuccessful party on terms that place the non-party under a clear contractual obligation to indemnify the unsuccessful party against his liability to pay costs of the successful party",

and this, my Lady, may apply,

"it may well be appropriate to make an order under section 51 that the non-party pay those costs directly to the successful party. Such an order may, for instance, save time and costs in short-circuiting the Third Party (Rights against Insurers) Act 1930."

And that would of course involve us having obtained a costs order against the claimant, if your Ladyship were to make one, then making her bankrupt if that were necessary. It is obviously something that we would wish to avoid, but I suspect that if that in fact was the position, it would never arise, because a responsible insurance company would of course meet the liability in accordance with their contractual obligation.

He then deals with the trade union funding of unsuccessful litigation, and I do not think I need to read then. And then (4) does not apply. Then:

"(5) The position is more complex where the defendant's costs have been funded by insurers at risk under a policy under which their liability is limited to a sum which is insufficient to cover both liability and costs."

MRS. JUSTICE EBSWORTH: I do not think that applies either.

MR. SPENCER: Yes, I think then I can go to p.1602, just below letter E:

"More generally, I am not persuaded that it will always be appropriate to order liability insurers to pay the plaintiffs' costs where they have unsuccessfully defended a claim made against their insured if the result of such an order will render them liable beyond their contractual limit of cover. It seems to me that the appropriate order may well turn on the facts of the particular case.

"None of the consideration of principle set out above are directly relevant to the facts of the present case. Sun Alliance have funded the Murphys' litigation under a commercial agreement, but that is, it seems to me, the only ground that can validly be advanced in support of the Youngs' contention that Sun Alliance should be ordered to pay their costs. In particular: (1) Sun Alliance have had no interest in the result of this litigation, save I so far as this has affected their liability to pay costs."

And, my Lady, that may apply here, for all we know.

"(2) Sun Alliance did not initiate the litigation. They were contractually bound to fund it up to their limit of liability of £25,000 and would, in consequence, have been better off if the litigation had never been commenced."

That too may apply here. The next part, my Lady, is important:

"It has not been suggested, nor could it have been, that Sun Alliance could properly have refused their consent to this litigation. Counsel had advised the Murphys that they had `a strong case'."

Now, my Lady, we do not know what the position is here. We do not know what advice the claimant got in this case, or what advice was provided to the insurance company who were being asked to fund this litigation by those advising the claimant. If in fact the position was that the claimant was being advised that she had a strong case, then one would be in difficulty in proceeding against the insurer who acted upon that advice by providing cover in accordance with the contractual obligation. If, on the other hand, cover under the policy was limited to cover only in circumstances where it was reasonable for the claimant to pursue the claim and the advice was the claimant received and was imparted to the insurer was that the claim had little prospect of success, then in those circumstances the insurer would in a sense be a volunteer, providing cover to the insured outside the terms of the policy, and in those circumstances that would, in my submission, be an exceptional circumstance for ordering such an insurer to pay a successful defendant's costs.

"(3) Sun Alliance exercised no control over the conduct of the litigation."

We do not know what control if any has been exercised here. The discovery that we seek goes to that issue.

"(4) Sun Alliance cannot be accused of wanton and officious intermeddling in the dispute."

My Lady, I think again we do not dispute that.

My Lady, I think that is the heart of the judgment. If your Ladyship, just to complete it, goes to the very end of it, at letter C on p.1604:

"As did the judge below, I accept the submission that legal expenses insurance is in the public interest, particularly if it is on the terms of the cover in the present case."

So we need to see the terms of the cover to see whether this policy accords.

"Such interest not only provides desirable protection to the assured, it is of benefit to the adverse party in that (i) it is likely to ensure that careful consideration is given to the merits of the litigation at an early stage and (ii) it provides a potential source of funding of the adverse party's costs should the assured be unsuccessful. The latter has proved illusory in the present case because of the limit of cover, but evidence before the court suggests that it is unusual for the limit of cover to be exceeded. That very evidence leaves me uncertain what the effect on the availability of such cover would be if legal expenses insurers were exposed to costs orders under section 51, but I do not believe that question is critical to the answer in this case

"An order under section 51 that a non-party will pay costs only be justified when exceptional circumstances make such an order reasonable and just. In this judgment I have explored some of the categories of exceptional circumstances that may justify such an order."

My Lady, those were the ones we were reading a moment ago.

MRS. JUSTICE EBSWORTH: Yes.

MR. SPENCER:

"This case does not fall into any of them. I have reached the conclusion that the existence of legal expenses insurance with limit of cover that has been exhausted does not make it reasonable or just to order the insurer to pay the costs of the adverse successful party. For those reasons I would dismiss this appeal."

So, my Lady, that, as I understand it, is in respect of legal expenses insurance the current, if I can put it globally, state of play. We want to be put in a position, by a disclosure order, to enable us to investigate whether it is possible to mount an exceptional circumstances argument to justify joining the insurer, if that becomes necessary, and seeking an order against the insurer. Otherwise, we are limited only to an order against this non-legally aided claimant, where it is very probable that the means available to her to pay the defendant's taxed costs are likely to be very limited.

MRS. JUSTICE EBSWORTH: Well, as I said in the course of argument, and I will ask Mr. Grace, but this does not appear to me to arise unless and until I know that there is a limit and the limit has been exceeded.

MR. GRACE: My Lady, I have no shame or hesitation or embarrassment in saying that there is a limit and that the probability, so far as one can see at the moment, given the very substantial costs that the defendant seems to have mounted up in this case, the probability is that the limit will be exceeded. I cannot say more than that. I do not think it is open to me, without consent from the insurers, to say what the limit is.

MRS. JUSTICE EBSWORTH: No, I can see that problem.

MR. GRACE: Which brings me really, my Lady, to the whole approach that is taken by the defendant in relation to the costs here, which procedurally in our submission is misconceived because what is quite plain from the rules -- and my learned friend has not referred your Ladyship to the CPR on this point

MRS. JUSTICE EBSWORTH: Well, yes, that is what I was coming to.

MR. GRACE: It is p.626 of the CPR.

MRS. JUSTICE EBSWORTH: By an oversight, mine has not been brought down, and this court, for some extraordinary reason, does not have a copy of the CPR. (After a pause): Oh, they are in the Court of Appeal, I am told. They are obviously short of copies! Mine has been sitting with me every day of this -- yes, sorry, 626.

MR. GRACE: Yes, and 48.2. May I say that it is unfortunate that although Miss Tarrant asked Miss Powell yesterday that if there were to be any unusual applications to be made in relation to costs, that we could have notice of that, we received no notice at all. I did look, in fact, at some of these cases this morning, including Murphy , just as a precaution, but I did not bring them over because we assumed, on the assurance we had been given, that no point was being taken. But that is by the by.

I mention it because in fact there is another case which is referred to in the notes, the Globe Equities Ltd. v. Globe Legal Services Ltd ., reported in The Times on 14th April this year, which I read this morning, which in fact indicates that there do not have to be exceptional circumstances to make an order against a non-party, although the dicta of the Court of Appeal, in among other cases the Murphy case which my learned friend has just referred your Lordship to, to the effect that there had to be exceptional circumstances, are misconceived because they were based on the misreading of Lord Goff's speech in the House of Lords in the Aiden Shipping case, which was the origin of the jurisdiction to award costs against non-parties, so it does not have to be exceptional circumstances.

So if that helps my learned friend -- and I would have brought the case if we had had notice that the point was being taken.

MRS. JUSTICE EBSWORTH: Yes.

MR. GRACE: But, my Lady, the procedural defect that there is in the position at the moment that is being advanced -- or the proposition that is being advanced by the defendant -- is really contained in part 48.2, which provides, as your Ladyship sees:

"Where the court is considering whether to exercise its power under section 51 . . . to make a costs order in favour of or against a person who is not a party to the proceedings,"

and that really is the position that we are in at the moment, that my learned friend is asking you to consider, "then that person" -- in other words, the insurer,

"(b) must be added as a party to the proceedings for the purposes of costs only and must be given a reasonable opportunity to attend a hearing at which the court will consider the matter further."

And it is at that stage, once the insurer has been added as a party to the proceedings, that disclosure of documents can be achieved against the insurer.

Indeed, it may be that your Ladyship can make an order for disclosure against the insurer today, subject obviously to the insurer's right to make representations against such an order in due course. But disclosure against the claimant is wholly inappropriate. They are privileged documents in the litigation, and the privilege cannot be waived in circumstances of this sort. There is no authority that I know of to the effect that it can be ordered to be waived in these circumstances, and you Ladyship will be aware that Mr. Justice Toulson in the Patel case only earlier this year said that even the CPR, which provided that in certain circumstances in the context of wasted costs orders that otherwise privileged documents could be ordered to be disclosed, Mr. Justice Toulson held in that case that the CPR were ultra vires in that respect, and a fortiori, where there was no rule providing for privilege to be overridden in those circumstances, the court does not have the power to order disclosure of these documents at this stage in the litigation. The only power it would have would be if the insurance company were joined as a party, as it has to be under the rules, where the court is considering making an order against the insurance company and then the insurance company can make whatever representations it may think are appropriate.

As your Ladyship will have seen from the report in the Murphy case just from the headnote, the proper procedure was followed there, and the defendant to the action joined the insurers as second defendant in order to apply for a costs order against the insurers. So procedurally, it is not appropriate, in our submission, to approach things in this way by means of an order for disclosure against the claimant.

My Lady, there is another matter in relation to costs, because it seems to us inevitable that a costs order is to be made in this complaint, and ordinarily, using normal procedure, such an order would be made today. This is of course a wholly separate point than the one raised by my learned friend in relation to costs against the insurers. The submission that I make is that only a proportion of the costs of the trial should be paid by the claimant, because the trial could, should and would have been shortened by a more responsible and reasonable approach to the issues by the defendant, instead of the persistent intransigence that there was in the face of the suggestion that there be a trial of a preliminary issue, and your Ladyship

MRS JUSTICE EBSWORTH: Well, would that not be a stronger point, Mr. Grace, if the claimant's advisers had made an application to the court under Part III for the narrow issue to be tried first?

MR. GRACE: Oh, my Lady, I conceded at the outset -- I think on the Monday I conceded that the issues could and should have been narrowed. That of course is the responsibility of both parties, and as I said to the Court of Appeal, it was the failure of both parties to achieve that narrowing of the issues before the trial that led to unnecessary costs. But your Ladyship did describe it in your Ladyship's judgment as unfortunate that the defendant chose not to agree to the course of the trial of the preliminary issue at the beginning of the trial this week, and it is unfortunate, to say the least, because if they had so agreed, given that in fact their submission of no case succeeded solely on the basis of Mrs. Worsley's evidence, if the preliminary issue had been tried first, the submission presumably would still have been made at the close of Mrs. Worsley's evidence, and she would have been the only witness who was called, Dr. Delamore and Professor Sussman obviously would not have been called on that issue, my learned friend would have made the same submission at the close of her evidence as he made to your Ladyship yesterday, that would have been just as successful before your Ladyship as it was yesterday, because your Ladyship's findings were based solely on her evidence, and Dr. Delamore's and Professor Sussman's evidence is irrelevant to that issue, and we would have dealt with the case in two days rather than four.

My Lady, that, in my submission, is incontrovertible, and it is the result solely of the defendant's intransigence, for which reasons which were obscure, at least to me, and were never explained to your Ladyship by my learned friend.

It is as a result of that that the trial lasted longer than it should have done, and in our submission, at the very least the claimant should not pay half the cost of the trial, and the appropriate order in reality is that the defendant should pay half the cost of the trial -- in other words, at any rate the claimant should not pay half the costs of the trial, and the preferable order in our submission is that the defendant should pay half of the costs of the trial.

So that is the point that I make on the substantive question of costs, and it does seem to us that your Ladyship needs to make a substantive order as to costs of the action today, and then, if the defendant wishes to pursue the insurers, it will then have to join the insurers as a second defendant, and seek a disclosure order against them, and indeed it may be appropriate for your Ladyship to make such a disclosure order today, giving them of course leave to appear. I can name

MRS. JUSTICE EBSWORTH: Who are the insurers?

MR. GRACE: They are called Eastgate Assistance Limited which I think is a part of the Hambro organisation. So there is no secret about it. I am not trying to conceal. But it does not seem to me that without reading the policy in detail that more than the identity of the insurers and the fact that there will probably be a liability in excess of the amount of the indemnity should be disclosed. It may be that the ... paid by the insured to the insurer requires that the insurers be notified before any more information is disclosed. And that may be the least of the obligation. It may be that there is a prohibition against disclosure of information, but it seems to me that disclosing the identity of the insurers is not a great step to take.

MRS. JUSTICE EBSWORTH: Of course since I do not have the advantage of having that information in front of me -- but I accept what you say, because I recall it myself, about the question of not having to prove exceptional circumstances. It may be that the matters at 3 do not need to be dealt with anyway.

MR. GRACE: Well, your Ladyship is referring to paragraph 3

MRS. JUSTICE EBSWORTH: Of the schedule.

MR. GRACE: Oh, the schedule. Well, I think probably they would. The significance of the Global decision -- I was only able to read it in The Times report -- was that it removes the need for exceptional circumstances to be proved, but I think the other requirement set out in Murphy , demonstrating the involvement or the control of management

MRS. JUSTICE EBSWORTH: Stands, yes.

MR. GRACE: of the claimant by the insurers -- those requirements still exist. But plainly that requires disclosure from the insurers to say what they were doing, rather than to indicate what the solicitors or the claimant's legal advisers were doing.

MRS. JUSTICE EBSWORTH: Yes. And you are saying, clearly the general rule that costs follow the event applies, and I should as a first step make an order for costs in favour of the defendant, but I should limit it in the way that you say

MR. GRACE: Yes.

MRS. JUSTICE EBSWORTH: contrary to Mr. Spencer on that, and in respect of the other matters, the most that I can and should do is make an order against Eastgate Assistance Limited with liberty to apply in the terms of schedule A.

MR. GRACE: Yes.

MRS. JUSTICE EBSWORTH: Yes, thank you.

MR. SPENCER: My Lady, can I say that my junior did inform my learned friend's junior yesterday that this application was being considered. It is right to say that we said that we would let her know if a definite decision was made to proceed. That was made earlier this morning, and it is unfortunate, and we apologise for the fact that did not reach my learned friend, but they were put on a degree of notice yesterday

MRS. JUSTICE EBSWORTH: That is a little ambiguous Mr. Spencer. Are you saying that it reached his junior?

MR. SPENCER: My lady, yesterday

MRS. JUSTICE EBSWORTH: No, today?

MR. SPENCER: No, my Lady, there has been no contact between us today. None at all.

MRS. JUSTICE EBSWORTH: No, it is just the way you phrased it, that you did not reach Mr. Grace, was ambiguous.

MR. SPENCER: Forgive me, my Lady, there has been no contact between us today, there should have been and it is for that that I apologise. I assumed that my learned friend was reading these authorities as a consequence of the fact that his junior had been put on notice.

MRS. JUSTICE EBSWORTH: Yes, you made that point

MR. GRACE: The only reason I told your Ladyship about it was to apologise that I had not brought the authorities with me

MRS. JUSTICE EBSWORTH: Yes, quite, I accept that.

MR. SPENCER: I understand that.

My lady, can I deal first of all with the application that we made. My Lady, we do not make an application under Part 48(2) as my learned friend says we are making, because when we made our application we did not know who the insurers were so we could not possibly have been making an application under 48(2). It is only when my learned friend tells us for the very first time who the insurers are that we are in a position, as it were, to consider going directly against anybody other than his client.

My Lady, in any event -- if my learned friend could just for one moment leave me to make my submissions -- we do ask that we should be given the disclosure that we seek in the schedule A. There seems to us no reason why the claimant should not provide us with that information. We need to see the policy, we need to see its terms and conditions and we need to see what advice the insurer received before we can make a decision as to whether or not that insurer should be brought before the court in accordance with s.51 and an order should be made against that insurer, whether it is on exceptional circumstances or any other basis. Really I cannot think what possible objection there could be to the claimant being ordered to provide that information. The policy and its terms and conditions and cover cannot of itself contain anything that is sensitive in any way, and ought not to

MRS. JUSTICE EBSWORTH: Well, I think what is being said, apart from anything else, is that the policy may contain within it a prohibition on the disclosure of that material, other than by the insurers.

MR. SPENCER: Yes, my lady. Such a term or condition would have no strength or force in the face of a court order requiring an assurant to provide that information.

MRS. JUSTICE EBSWORTH: Yes.

MR. SPENCER: My Lady, my learned friend's application on costs is, if I may say so, breathtaking. The complaint that he made to your Ladyship about the form that the trial took is exactly the same complaint that went to the Court of Appeal. It is unfortunate that we do not have the judgment of the Court of Appeal available to us, because if we did your Ladyship would be able to see that the Court of Appeal made no criticism whatever of the fact that the defendant here prepared for a trial in accordance with the claimant's summons for directions. It was the claimant's summons for directions that sought what I can only call an all singing and all dancing trial, with no less than six different categories of experts, including epidemiologists and microbiologists, and sought permission for two of each category -- in other words, no less than 12 experts. That is what the claimant's summons for directions sought. The Master wisely limited it to the three categories with which you are familiar, a physician, an epidemiologist and a microbiologist, but still permitted two of each, and there was no suggestion at that stage of there being any sort of limited trial or preliminary issue.

Now if the claimant wished to have that, that was the time for the claimant to seek the appropriate order, a submission I made to the Court of Appeal and one with which they acceded in terms. But we got to the state of my learned friend coming along and making an application to your Ladyship at the start of this case which your ladyship acceded to, as the Court of Appeal said, for the very best possible reasons, but which was impossible because the Court of Appeal found that the issues were inextricably linked.

My Lady, one of the difficulties

MRS. JUSTICE EBSWORTH: I am driven to wonder that, in making that finding, it even passed through their minds that she would then make a submission based on a narrow issue.

MR. SPENCER: It may not have done. But, my Lady, my point to their Lordships was that we had to be entitled to see the claimant's expert evidence and the evidence that they gave before we would be in a position to know how to proceed, and I was adamant that I wanted in no way our experts to give our evidence before the claimant's experts gave their evidence, a fact that in my learned friend's skeleton argument he conceded to the Court of Appeal would be the consequence of your Ladyship's order.

My Lady, the reason that I was so concerned about the claimant's experts coming before the defendant's experts was quite simply this. It was apparent on the face of both of their reports that it was highly likely that a great deal of the relevant evidence that they would wish to give on the issues before your Ladyship was not contained in those reports, and that my learned friend would be seeking to adduce a great deal of evidence of which we have had no notice. My Lady, I was right about that. First we had Dr. Delamore and his report was greatly extended, and your Ladyship made the comment you could not understand why we had not been provided with that information in advance. Then we had professor Sussman, and we had, in respect of Professor Sussman's evidence, a mass of highly technical material to justify a view that was not even expressed in the opinion that he had provided about how a tampon might contribute to this disease, none of it contained in this report, none of it contained in any writing that he has submitted for peer review or published in any other place, except, as he said -- and breathtakingly again, if I may use that epithet a second time -- that the only way we would have found out about it was by asking him.

My Lady, that is not cards on the table litigation, and I suspected that is exactly what was going to happen, which was why I was quite adamant that no order should be made in this case that would result or have any risk of resulting in our experts coming before the claimant's and, as events proved, we were entirely right about that.

My Lady, there is another point which my learned friend overlooks as well. On the narrow issue -- that is, the question of whether the warnings on the box were adequate -- at the very heart of the case which the claimant has put forward before your Ladyship and which your Ladyship has dismissed was the allegation that the warnings on the leaflet or advice on the leaflet should have been printed on the box. My Lady, as to that we were specifically told in terms that it was a matter of expert evidence and we would have expert evidence upon it. Again, my Lady, I anticipated that there may be expert evidence upon it. In fact it never materialised but until those two experts had gone into and out of the witness box, and my learned friend had closed his case, I was never to know whether there was anything more to come on that issue.

So, my Lady, my learned friend cannot now, with great respect to him, repeat the complaint that he makes about the form this trial took, a complaint that has been rejected in terms by their Lordships in the Court of Appeal, and seek on its back to justify an order for costs, my Lady, which has, in my submission, absolutely no justification whatever. It would be an order of costs which would, in my submission, fly in the face of the judgment that the Court of Appeal gave as to the way in which the defendants have conducted their part of this litigation. I invite your Ladyship to reject it, and to reject it in terms.

MRS. JUSTICE EBSWORTH: Yes.

MR. SPENCER: My Lady, I think those are the only matters that I need address your Ladyship on.

MRS. JUSTICE EBSWORTH: Thank you.

MR. GRACE: My Lady, I wonder if I can just respond to what my learned friend has said about costs, because I am not saying anything about the original preliminary issue which met its fate in the Court of Appeal. What I am concerned about, and I submit that your Ladyship should be concerned about, is the events which followed the judgment of the Court of Appeal.

The Court of Appeal, as your Ladyship is aware, gave strong encouragement to the parties to agree a preliminary issue and it seemed, from what my learned friend was saying at the time, that it would be perfectly possible to agree such an issue, and I, your Ladyship will remember, when we came back at I think two o'clock on Tuesday afternoon, having been to the Court of Appeal, I suggested such a preliminary issue be tried on the basis that it was assumed that TSS could be caused by use of tampons and in those circumstances were that warning was adequate (sic). My learned friend refused and gave no reason for refusing and there matters rested. What I submit and submitted to your Ladyship earlier is that this has nothing whatever to do with the evidence of Dr. Delamore and Professor Sussman. The issue, had it been tried in that way, were the warnings adequate, would be precisely the issue that your Ladyship has decided against the claimant. I fail to understand what the relevance of Dr. Delamore and Professor Sussman could possibly be in relation to that. ... in the evidence of the claimant and, as I said earlier, my learned friend could only have made his submission, which would have had the same result.

The short point is that the defendant was in his actions to find -- run the case in the way they wanted to to deal with wider issues in relation to tampons generally and to seek to establish that actually, you do not need to give a warning at all. That was the new case that started to be run only on Monday when it appeared that the defendant's way of running the case was slipping or might be slipping from their grasp. It was nothing to do with Dr. Delamore and Professor Sussman. That is precisely my point. They would not have been necessary to have been called, had we taken the step and my learned friend had been prepared to approach things on a more sensible way at that stage of matters.

MRS. JUSTICE EBSWORTH: In addition to giving judgment for the defendant on the claimant's claim, I am asked to make an order relating to the costs of the matter that the question of costs be adjourned to the first open date after however many days I consider appropriate and that the claimant be ordered to make and serve a further list of documents, supported by a disclosure statement in relation to the documents listed in schedule A, together with copies thereof within 14 days of today.

Schedule A requires the disclosure of a legal expenses policy, under the terms of which the claimant received financial support for pursuing the claim, the terms and conditions of cover provided under the policy referred to, and all the documents relating to(1) the control or management of this claim by the claimant's legal expenses insurers,

(2) the limit of the cover provided, and

(3) the advice given by the claimant's legal advisers to her legal expenses insurers in relation to the funding and/or merits of her claim. The order is in that form essentially because the defendants say that they wish to be in a position to consider whether or not they should join the claimant's legal expenses insurers as a party in order to make a claim for costs against them. That situation could only arise firstly if there is a limit on the policy, which I am told there is, and secondly if the expenses had exceeded that limit, which I am told in all probability they will.

The claimants say two things. Firstly they say it would be wrong for me to make an order in that form essentially because it is not for the claimant but for the insurers to disclose the terms of the policy. There has been little or no notice of the fact that this point was going to be taken. The claimant has disclosed the identity of the insurers. They suggest that what I do is to make an order against the insurers with liberty for them to apply should they wish to be joined for the purposes of dealing with that information and, in any event, they say it is to an extent premature, because what I should do initially is to make the costs order in the ordinary form and provide for the provision of the information in order that it may be determined if the issue arises at all. The second matter which is raised -- and this is raised by the claimant -- is that I should not in any event make an order for costs which goes to the whole of the costs incurred in this action but should limit it to a situation whereby the claimants should not pay half the costs of the trial because of the way the defendants have run the action.

This goes back to the events of Monday, when the case first started, when, pursuant to a matter raised in his skeleton argument, Mr. Grace for the claimant invited me to make an order that I should try the issue as to liability based on the statute for negligence first, and determine the narrow issue of whether or not the claimant should establish her case at all against the defendants without going into the complex and expensive issue of liability.

I found that an attractive argument for reasons that I do not propose to rehearse again. The Court of Appeal did not: they upheld the defendant's objection. I am undoubtedly bound by the decision of the Court of Appeal and it is not for me to review it.

There are two issues that arise. One is whether the Court of Appeal gave an indication, notwithstanding their order, that they thought a preliminary issue could and should be agreed, and secondly whether the situation is in any way changed by the fact that Mr. Spencer, after such an indication, determined not to go along with it. I am very attracted by dividing the costs in the way that the claimant suggests, but I am driven to conclude that since the Court of Appeal actually made the order that they did, I cannot go behind it, and to make an order which limits the costs in the way suggested would in fact be going behind the order. Therefore, I am not able to accede to that particular request because I do not, in the circumstances, think I could actually say that the defendants have failed in their duty to assist the court in achieving the overriding objective, when their objection was made with an order of the Court of Appeal that they were entitled to proceed in the manner they sought.

Secondly, I think there is force in the point, and it remains a forceful point, that the claimant's summons for directions was the basis upon which this trial was prepared, and they at no stage sought to alter that format until the first day of the trial. Whilst I think that both they and the defendant can be criticised for not limiting the action, I think that the defendant's position is fortified by the Court of Appeal and the ordinary order for costs must flow, and that is that the claimant will pay the defendant's costs of the action.

I give liberty to apply in respect of that matter, should it be necessary to consider the question of joining Eastgate Assistance Limited and seeking an order against them for any part of the costs. In order to facilitate the making of that order, what I propose to order is that the claimant do invite Eastgate Assurance Limited to provide to the defendants the material listed in schedule A of Mr. Spencer's draft order and that in the event of Eastgate Assistance Limited refusing to accept that invitation, I then make an order that Eastgate Assistance Limited do provide that information but give them liberty to apply in respect of it.

I think that should, Mr. Spencer, actually get you, one way or the other, the information.

MR. SPENCER: My Lady, it does indeed, and I am grateful to you.

MRS. JUSTICE EBSWORTH: I would be grateful if -- I think the defendants should actually draft the order that I finally make.

MR. SPENCER: Yes, certainly.

MRS. JUSTICE EBSWORTH: The originals

MR. SPENCER: Did your Ladyship propose any deadline by which

MRS. JUSTICE EBSWORTH: I think in the possession of the defendants, which is where they came from. They were given to me by way of illustration and were not in fact exhibits in the case.

MR. SPENCER: My Lady, would it be helpful if your Ladyship were to impose some sort of deadline on the voluntary

MRS. JUSTICE EBSWORTH: Yes, I am sorry, it would.

MR. SPENCER: May I suggest 28 days?

MRS. JUSTICE EBSWORTH: Yes, very well.

MR. SPENCER: I am grateful.

MRS. JUSTICE EBSWORTH: I doubt that you are going to get very much reaction because of the holiday period -- I would myself have thought by 21st December, which is the penultimate day of term.

MR. SPENCER: I am grateful.

MR. GRACE: Sorry, can I just be sure that what has to be done in 21 days is the

MR. SPENCER: The voluntary disclosure by the insurance company.

MRS. JUSTICE EBSWORTH: Voluntary disclosure.

MR. GRACE: I see, right, so we have to invite them.

MRS. JUSTICE EBSWORTH: Yes.

Cited in 1 later judgment

Wilkes v Depuy International Ltd 2016