Bailey & Ors v Glaxosmithkline (UK) Ltd [2017] EWHC 377 (QB)

Case No TLQ/15/1275[2017] EWHC 377 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/03/2017
Before
THE HON MR JUSTICE FOSKETT
Between
SANDRA BAILEY & OTHERSClaimantsGLAXOSMITHKLINE (UK) LIMITEDDefendant
HARRY LAMBERT (instructed by Fortitude Law) for ClaimantsCHARLES GIBSON QC, MALCOLM SHEEHAN QC and HENRY WARWICK (instructed by Addleshaw Goddard LLP) for DefendantHearing Hearing dates: 21 and 22 February 2017
Judgment
[1]I held a further CMC in this case on 21 and 22 February 2017.[2]I do not intend to set out the background in detail: this judgment should be read against the background of my two previous judgments which can be found at [2016] EWHC 178 (QB) and [2016] EWHC 1975 (QB).[3]I will have to draw attention to one or two aspects of the background since I have been involved in this litigation because those aspects have informed my approach to the precise issue I have to deal with at the moment, but the immediately relevant aspect of the history is that at the last hearing I gave permission for the Claimants to substitute certain new experts for those who had originally been instructed (with one additional expert). I did so for the reasons given in the second of the two judgments referred to above, the purpose broadly being to enable the Claimants to put forward what should effectively be the high point of their case on the generic issues: see [47] of that judgment in which I emphasised that “the high point of the Claimants’ case” is the high point of the case as reflected in the list of issues set out in [19] of my first judgment. That would enable the Defendant to decide whether to launch a summary judgment application and the Claimants’ funders to make at least an initial appraisal of the strength or otherwise of the Claimants’ case on those issues. As will be apparent from the order made giving effect to that judgment, I contemplated that if no summary judgment application was made and the matter was to proceed to trial, directions concerning the response of the Defendant’s experts to the new expert evidence would be given at a further CMC, together with any other relevant directions.[4]I gave permission for Professor Healy to take over as the psychopharmacological expert from Professor Lader, for Professor Lewis to take over the medical statistics aspect hitherto dealt with by Professor Hotopf, with Professor Hotopf continuing to deal with epidemiology, and Professor Hughes to continue as the Claimants’ expert in the field of pharmacokinetics.[5]Each produced a report thereafter which was served on the Defendant’s solicitors on or about 30 December 2016.[6]No application for summary judgment has been made by the Defendant in the light of those reports, but objection has been taken to a number of aspects of the report of Professor Healy which the Defendant has asked me to rule upon before the matter proceeds further by, at least in part, the preparation of reports by the Defendant’s experts in response to those of the Claimants. My decision on that issue is likely to impact on a putative application for specific disclosure by the Claimants. I say “putative” because no application has been made although the pre-hearing correspondence and the Skeleton Argument of Ms Jacqueline Perry QC and Mr Harry Lambert, with Mr Lambert appearing on this occasion for the Claimants, foreshadowed some possible disclosure issues.[7]Another matter that was raised on behalf of the Defendant concerned the terms of Professor Hotopf’s report. All I need say is that those matters have been dealt with by agreement (subject to the question of whether there should be an “unless order”: see paragraphs 39-41 below) and the agreement will be reflected in the order drawn up to give effect to the decisions I make in this judgment and indeed to reflect certain other matters that have been agreed.[8]So far as Professor Healy’s report is concerned, the Defendant contends that it contains material that ought not to be there. The material is divided into four categories: a) Category 1 material that deals with matters that are not relevant to the issues in the group litigation; b) Category 2 material that advances factual allegations and matters that have not been pleaded and which are not addressed by disclosure or factual evidence; c) Category 3 material that contains purported statements of fact in circumstances where Professor Healy has not(i) identified or exhibited the source of the allegation and(ii) where he cannot give direct factual evidence of the purported fact stated; d) Category 4 material in which Professor Healy appears to refer to and purport to give evidence about documents that cannot be made available to the Defendants’ experts.[9]All these categories were helpfully colour-coded on a schedule and indeed, even more helpfully, a Scott Schedule has been produced setting out the relevant parts of the report and, side by side, the competing arguments about those parts. I do not propose annexing that Schedule to this judgment, but the nature of the issues raised will emerge below.[10]It is said that there is overlap between the categories of objection in some cases, but the fundamental point, it is argued, is that Professor Healy has made various assertions that are not within the scope of the present litigation, in addition to giving factual evidence rather than evidence simply within his field of expertise. Whilst there is inevitably disagreement with his expert views on the material issues, it is not suggested that what he has said about those issues within his area of expertise is in any way objectionable. The Defendant invites me to exercise such powers as I have to excise from his report the alleged objectionable features.[11]At the forefront of the submissions made by Mr Charles Gibson QC, who led for the Defendant on this occasion, was a reference to the previously agreed basis upon which this group litigation, which is proceeding by way of certain lead cases, was to proceed. It is common ground that I summarised the essential nature of the case advanced on behalf of the Claimants accurately in my first judgment, the relevant paragraphs being as follows:
“5. … what is sought to be alleged in these proceedings is that [Seroxat] is worse than other drugs of a similar nature in relation to symptoms following discontinuation of its use. It is pleaded on behalf of the Claimants that "the capacity of [Seroxat] to cause adverse effects consequent upon or following discontinuance (withdrawal) [is] such as to prevent or make more difficult the ability of users to discontinue, withdraw from or remain free from taking [it], to an extent greater than with other SSRIs." 6. That is the essential (and primary) nature of the case advanced. If that allegation is established as a matter of fact, it is alleged that it gives rise to the conclusion that the drug is "defective" within section 3 of the Consumer Protection Act 1987 ('the 1987 Act'). 7. The alternative (and secondary) allegation is that Seroxat is defective because it is "marketed and sold without warnings that it [causes] more or greater symptoms on discontinuation than all other SSRIs".”
[12]As I indicated then, that primary and that secondary case were translated into the agreed issues that I set out in full in [19] in that judgment.[13]Mr Gibson has characterised the primary allegation as being that Seroxat is “worst in class” – in other words, the worst in the class of SSRIs – because of the greater difficulty relative to other SSRIs of a user of Seroxat discontinuing his/her use of it and the consequent prolongation of discontinuation symptoms. It is an accurate characterisation. If the allegation is established, it is said that this makes the drug “defective” within the 1987 Act. If that is the ultimate conclusion in law, strict liability for any damage caused wholly or partly by the defect arises (see section 2(1) of the Act) subject to the defence to which I will refer below. Any such conclusion does not depend on a finding of negligence or other breach of duty. It is obvious why at face value it represents an attractive avenue to redress for those who consider themselves to have been affected by the alleged disadvantages of the drug.[14]If all the relevant hurdles are surmounted by the Claimants, there is what is known as the “development risk defence” available to the Defendant as provided in section 4(1)(e) of the Act if it can prove that the state of scientific and technical knowledge at the relevant time was not such that “the producer of products of the same description as the product in question, might be expected to have discovered the defect if it had existed within the products.”[15]The Defendant’s case throughout has been that the approach to the primary issue adopted on behalf of the Claimants is fundamentally misconceived and, as Mr Gibson put it, it is necessary “to look at a prescription only drug of this type in the round” before deciding that it is defective, taking into consideration, amongst other things, a risk/benefit analysis of its features. This was advanced in the generic Defence served in September 2008 pursuant to the order of the then Senior Master, Master Whitaker. I will highlight for this purpose the following paragraphs:
“40. Without prejudice to the foregoing denial, it is averred that any proper comparison between medicines would have to include a comparison of the relative risk/benefit profiles of the medicines being compared, both generally and for the particular Claimant in question. Such an analysis would include consideration of: (a) The relative efficacies of the medicines being compared. (b) The time likely to be taken to achieve steady state and, therefore, to achieve therapeutic efficacy. (c) The indications and contra-indications of the medicines being compared. (d) The available formulations of the medicines being compared. (e) The risks associated with the medicines being compared, including those associated with a longer half-life, for example, in overdose and when switching from one medication to another; and (f) The adverse reactions associated with the medicines being compared. 41. Further, if, which is denied, a defect in a prescription-only medicine can be assessed by comparing such medicine against another prescription-only medicine, it is denied that the proper range of medicines against which Seroxat should be compared should be limited to the other SSRIs. By way of example, the Claimant was prescribed a range of antidepressant medication for the treatment of her conditions. Each of these medications, and others, would have been considered or capable of being considered by the prescribing doctor as treatment for the Claimants’ conditions.”
[16]These paragraphs were put in issue in the Amended Reply.[17]The issue was raised further in a Request for Further Information of the Particulars of Claim by the Defendant to which there was a relevant Reply on 23 May 2008. The request and replies were as follows:
“Request 6. In contending that Seroxat was defective for the reasons alleged in paragraph 5.1 of the Particulars of Claim, is it the Claimant’s case that the benefits of Seroxat against other SSRIs for a particular Claimant are material or to be taken into account? 7. If so: (a) is it contended that Seroxat had lesser benefits for every Claimant than other SSRIs?; (b) please identify each benefit and each SSRI being referred to? (c) Please explain why, if it is, the “comparator” group is limited to other SSRIs. If it is not so limited, please identify the other pharmaceutical or other products or treatments which form part of the “comparator” group.” “Replies 6. No. 7. (a) Strictly, given the answer to 6, an answer is not required. However, in the event that potential benefit is determined to be of relevance, the Claimant denies that the Product had or has any or any greater effectiveness or other substantial benefit when compared with other SSRIs. (b) No answer required, given the answer to 6. (c) Strictly, the answer to 6, an answer is not required. However, the comparators are limited to SSRIs because i. other anti-depressants (such as tricyclics and SNRIs) are not comparators as they have a different profile of action; ii. The Product was marketed alongside other SSRIs and promoted as a safer alternative to older anti-depressants, with fewer side effects.”
[18]It should be added that it was expressly part of the Defence that the Defendant had “consistently discharged its obligations under the domestic and European regulatory regimes in respect of the safety of Seroxat.” A Notice to Admit Facts was served by the Defendant on 4 December 2008 which, inter alia, sought in effect an admission of the foregoing proposition. The answer was as follows:
“The Claimants do not admit the Defendant’s case that it complied with all legal requirements imposed upon it. That is a subjective opinion within the knowledge of the Defendant and the relevant licensing authorities. It is noted for example that the Defendant was the subject of a lengthy criminal investigation in relation to alleged breaches of the Medicines Act in relation to its regulatory obligations. The decision not to prosecute does not necessarily mean that there was compliance as asserted by the Defendant. However, it is not and never has been part of the [Claimants’] case that the [Defendant] failed to comply with legal requirements imposed upon it. As such the Claimants decline to expend resources attempting to prove a negative when the compliance or otherwise with legal requirements does not form part of their case.”
[19]That was a somewhat circuitous way of responding, but the effective “bottom line” was that breach of regulatory requirements was not part of the Claimants’ case.[20]Against that background, it is undoubtedly with justification that the Defendant asserts that since the close of pleadings it has been plain that the Claimants’ case proceeds only on the basis of what can be described as a “worst in class for discontinuation symptoms for SSRIs” allegation and the associated allegation of a failure to warn that Seroxat was “worst in class” in this respect. Any breach of any regulatory requirement was irrelevant. I accept that it took some while for that position to be clarified through careful case management and otherwise, but clarified it was and that represented the basis of disclosure and the production of all evidentiary material, expert and otherwise, until the proceedings came to a halt at the end of 2010 or in early 2011 in the circumstances referred to in my first judgment.[21]I should also add that the Claimants specified, in an answer to a request by the Defendant to identify “any evidence other than peer reviewed scientific papers” upon which reliance would be placed, a large number of papers in Schedule A to the reply to the request, plus certain other documents specified in the answer to request number 2. Only documents that have emerged since then which go to the issue(s) identified in paragraph 11 above are now to be considered in addition.[22]Furthermore, the Claimants specified (in July 2009) the relevant “discontinuation symptoms” by reference to an answer to a request for further information concerning “clinically meaningful adverse events” said to have arisen on withdrawal of Seroxat. The list (said not to be exclusive) was of 16 clearly identified conditions (e.g., dizziness, anxiety, nausea, visual disturbances and so on). The experts who reported before the proceedings came to a halt in early 2011 focused on those specified adverse events and on nothing else. Unless some “never before identified” adverse event has emerged since then there is no basis upon which that list can now be expanded.[23]Since this matter has come before me, it has been the consistent position of the Claimants’ team, led by Ms Jacqueline Perry QC, that the case would continue, if permitted to do so, on the basis of the pleaded case and the issues defined in the way I have described. No application to amend the claim or the issues identified in [19] of my first judgment has been made at any stage and it is quite plain that any dispensation that I may have made in the Claimants’ favour (see further at paragraph 40 below) has been granted purely on the basis to enable the effective resurrection of the issues that came to rest in 2011. The further disclosure exercise was merely to update disclosure on those issues.[24]It does follow that any attempt on behalf of the Claimants (or indeed the Defendants for that matter) to move the case outside those well-defined parameters will not have my approval. That, therefore, represents my unequivocal starting point for considering the application relating to Professor Healy’s report.[25]Mr Lambert makes the bold submission that it would be wrong in principle for the court to “edit” a party’s expert report. He does not go so far as to submit that there is no power to require alteration to any such report. Indeed, though my attention has not been drawn to any reported incidents of this having occurred, I have myself seen cases where objections are taken at a preliminary stage to the admissibility and/or relevance of the contents of a witness’ statement of evidence, including for this purpose an expert’s report, and the court has been prepared to apply the notional “blue pencil” – indeed it has occurred already in this case by agreement. An obvious example is where a witness refers to “without prejudice” negotiations or an expert refers in his report to the content of the discussions between experts. Whilst the general approach is that matters of admissibility are for the trial judge, where it is claimed that something in a witness statement or an expert report should not be there, there can be no objection to the court exercising its power to declare at an interim stage that the material cannot be relied upon where it is clear that it should not be included, particularly if the inclusion of the material would extend the scope of the preparations for the trial and the trial itself where the parameters for the trial have already been clearly set.[26]I would agree with Mr Lambert, if this is the true nature of his submission, that the court would approach such an exercise with caution, but even a cautious approach requires action on occasions. Generally speaking, a court would not wish to interfere with the way an expert expresses him or herself. Indeed, that is not the nature of the exercise: the exercise is to declare inadmissible or irrelevant certain passages or topics in the report.[27]As I have already indicated, in this case there has been a process by which, over many years, the issues for determination in this litigation have been clearly and closely defined. Subject only to updating the disclosure exercise and the expert evidence in the light of it, the parameters for the forthcoming trial have not changed. Reference has been made to the recent decision of Hickinbottom J in Wilkes v Depuy International Limited [2016] EWHC 3096 (QB). Without, I trust, doing any injustice to his lengthy judgment, all he did in the section of his judgment dealing with the Consumer Protection Act 1987 was to make observations on the meaning of the relevant words in the Act in the context of the case with which he was dealing. The words of the statute were available to the Claimants’ very experienced former legal team and they plainly took a view on how best to advance the Claimants’ case in these proceedings within those words. The new legal team has not sought to change things although there has been a hint in some of Mr Lambert’s submissions that there is now a desire to engage, at least to some extent, in a risk/benefit analysis, something which had previously been expressly disavowed. If there is any such a desire or intention, then the short answer to it is that it is now too late to do so.[28]So are there matters that should not appear in Professor Healy’s report? There are, in my judgment, matters raised in his report that are plainly not relevant to the issues as already defined in this litigation. I know that his report was seen and considered by the Claimants’ legal team before it was served. I do not know whether any concerns were raised by the team with him and he has overridden those concerns or whether the team was content for the report to be served in its present form because it perceived there was no problem. I do not need (and have no right) to know the answer to that: it is irrelevant to my task in any event. All I would say is that I understand entirely the sensitivities that any legal team may have about suggesting amendments to an expert’s report and about not suggesting alterations that could be construed as being designed purely for the exigencies of the litigation. However, I can be somewhat more direct in my analysis since the report is addressed to the court.[29]I will summarise my views on the various matters raised by reference broadly to the paragraph numbers identified in the Scott Schedule: A.2.1 I agree with the Defendant’s submission that the outcome of the class action in the USA has no relevance to this case. Indeed, since there has never been any admission on behalf of the Defendant in any other litigation of the matters alleged in this case (see [11] of my first judgment), reference to the outcome of other litigation is irrelevant. However, since no objection was taken to Professor Healy’s reference to his involvement in the class action in the USA (something that I imagine would emerge whatever the contents of his report), I can see no real objection to him saying, if it is his belief, that the case was resolved in their favour provided (and this is important) it does not breach the confidentiality provisions apparently part of the settlement. I will leave to Professor Healy whether, against the background of these observations, he wishes to retain this one sentence. If he does, the Defendant can, in my view, respond to it very briefly by contesting (if this indeed is its position) that the action was resolved in the claimants’ favour or at least make it clear that, as I suspect was the case, a “commercial view” was taken of the claims and a confidential settlement of the jury action was concluded without admission of liability. I do not believe the trial judge will be remotely influenced by reference to this litigation or any other litigation: his or her decision will rest on the evidence given in this case. B.2.8 The reference to the alleged lack of independence of the MHRA from the pharmaceutical industry has no part to play in this litigation. B.5.4 In his reference to Study PAR 222 and the chronology that he gives in relation to it, he suggests that a brief synopsis of the study was posted on the Defendant’s website “following an action for fraud against GSK by New York State’s Attorney General.” The circumstances in which it came to be so posted are irrelevant to the present litigation. If Professor Healy feels that he wishes to give this context, he must understand that it will be open to the Defendant to correct his interpretation if that is their wish. However, it would be an entirely collateral issue and the trial judge would require very little information about it. B.6.5 The suggestion that the Defendant was engaged in some research “aimed at portraying any problems as the re-emergence of a depressive illness” is not an issue in the present litigation. C.2.2 The same comment applies to the suggestion that “sleight of hand” was required to demonstrate the difference referred to in this paragraph. D.2 – D.4 The only arguable relevance of warnings of dependence “in the mid-1980s” from “senior figures in the field” would be to the defence under section 4(1)(e). However, the issue has not previously been raised in this form and there has been no disclosure about it. Whether the trial judge would admit questioning of the witnesses for the Defendant about any correspondence there may have been between Professor Oswald and the Defendant would be a matter for the trial judge, but it is too late for this aspect of the section 4(1)(e) defence to be raised in this fashion now with its potential for an extensive disclosure exercise not previously undertaken. It should not appear in the report. D.1 and B.3.5 Professor Healy has said that his review of “the healthy volunteer studies” shows that the withdrawal adverse events were more obvious for Seroxat than “for other drugs in class.” As I understand it, various healthy volunteer studies for Seroxat that were in existence pre-marketing were commented on by Professor Lader and thus any conclusions to which he came could be the subject of discussion between him and his counterpart for the Defendant. If I understand Professor Healy correctly (and this appears to be the understanding of the Defendant’s team), he has seen healthy volunteer studies for other SSRIs and seeks to make a comparison between discontinuation symptoms associated with them and with Seroxat. If that is so, it opens up an area that had not been opened up before and is too late. If he is simply seeking to draw something relevant to the issue in this litigation from the healthy volunteer studies conducted in relation to Seroxat, that might be permissible. However, as I have indicated, it does not appear to be the case because earlier in his report he refers to having reviewed healthy volunteer studies for Fluoxetine and Sertraline and had “not found comparable evidence of dependence and withdrawal”. Fluoxetine and Sertraline are, I understand, both SSRIs and, to that extent, the comparison might appear to be relevant. However, as I have said, this would open up an area not opened up before and would, if permitted, require the disclosure of all relevant records in relation to Fluoxetine and Sertraline. That is quite out of the question. D.7 This kind of comment is well beyond the kind of comment that an expert should be making. Professor Healy is plainly entitled to say, if it is within his expertise, that what the Defendant describes as “recrudescence” in any case is, in his opinion, something different. But the suggested “passing off” of discontinuation symptoms as recrudescence “within marketing application authorities” is not an issue in the present proceedings and has not been the subject of any disclosure. E.1 generally[30]On my limited knowledge of the precise relevance of Study 329, I would not rule out reference to it in Professor Healy’s report: indeed, that is not suggested by the Defendant. However, the issue within these proceedings is not what was made of it in the New York proceedings by the Attorney General, but what it says, if it does, about the comparison between the discontinuation symptoms associated with Seroxat compared with other SSRIs. Equally, it is not about whether anyone was misled about the use of Seroxat or its effectiveness. There is no issue in these proceedings about marketing and publicity which, in any event, is well beyond what Professor Healy as an expert ought to be dealing with. Furthermore, I do not understand the relevance of the “Black Box” warning given in respect of all SSRIs when the issue is the comparison between the discontinuation symptoms associated with the use of Seroxat compared with those associated with other SSRIs. In relation to the research he and others conducted into Study 329, he is entitled to refer to it and draw upon it if, and only if, it is relevant to the issue of whether the discontinuation symptoms associated with Seroxat are worse by comparison with those associated with other SSRIs. My reading of the issues underlying Study 329 and any analysis of it is that it related to the effectiveness and safety of Seroxat per se with children and adolescents. It does not appear to be related to the issue defined above. In any event, it is beyond the remit of an expert, unless the issue has been placed before him for consideration, to comment on, for example, whether individuals were misled about Seroxat or whether there was selective reporting of the outcome of the study by GSK. Since these matters are not relevant to the current proceedings, assertions along these lines should not appear in the report. E.2 generally[31]I am unable to see the relevance to the present proceedings of whether the term “discontinuation syndrome” is an acceptable term or not.[32]F.2 generally[33]If Professor Healy wishes to mention his background with GSK I can see no objection to him doing so. If he wishes to include F.2.2, whilst I do not see it to be relevant, I cannot see why he should not include it if he believes it to be the case. I doubt that the trial judge will be very interested in the issue. F.3[34]I am not sure that it would be usual for an expert to refer to the media reporting of concerns about an issue, even if he himself was involved in the media event giving rise to the reports, but if Professor Healy thinks this is something to be mentioned, it is open to him to do so and the issue will not require any further disclosure. F.4 Professor Healy says that “at the heart of this case” are avoidance of transparency issues. That is not so. The issue is whether Seroxat is “defective” because it is “marketed and sold without warnings that it [causes] more or greater symptoms on discontinuation than all other SSRIs.” Whether it causes more or greater symptoms on discontinuation than all other SSRIs is a matter for expert evidence. Whether, if that is established, it rendered Seroxat “defective” because it was marketed without appropriate warnings is a matter of law and not for an expert. What was required by the regulators in the USA in this regard is not relevant to the position in the UK.[35]G.2[36]In these paragraphs Professor Healy says that he addresses “the ramifications for an individual’s health when they are obliged to take Seroxat for years and possibly the rest of their lives.” As expressed, that is not what this case is about: it is about whether the drug is defective for the reasons previously stated – is it “worst in class” for discontinuation symptoms? On a cursory reading of this section of the report, there appears to be a considerable amount of material that is not relevant to the issue thus identified and is directed to the side effects of the drug. That is not what the case is directly about save that it is, one supposes, arguable that if a particular side effect lasts longer or is felt more deeply with Seroxat than with all other SSRIs when discontinued then that would be relevant to that issue. However, it is not possible for me to dissect out of these paragraphs what is and what is not relevant to the central issue in the case. Since that is so, in this instance I am proposing to invite Professor Healy to review this section of his report. If in his review he considers it appropriate to refine what he has said and confine it to the issue as defined, then that would be of assistance to the court (to which, of course, the report is directed). If he does not consider that to be appropriate, I do not propose to rule that the current contents of the report in this regard should be deleted. However, the Claimants and Professor Healy must understand that there will be no further disclosure on the issues he raises and the trial judge may take the view that this aspect of the report is irrelevant with potential costs consequences. I.4 and I.5 - conclusions[37]These are not conclusions of relevance to the current litigation and are not conclusions that it is appropriate for an expert who is to assist the court with the issues identified above to draw.

Conclusion

[38]For the reasons I have endeavoured to summarise, I do consider that there are aspects of Professor Healy’s report that could be the subject of an order that they be redacted at this stage. The Defendant asks that if I reach that conclusion I should require the re-service of the report by a certain date with the relevant passages redacted, but that otherwise the report should be the same as that served on 30 December 2016. I had at one stage contemplated giving Professor Healy the opportunity simply to rework the report with the relevant passages deleted, but with only minor changes of grammar to make it read as if there had been no deletions. The reason for taking that course would have been to spare him the embarrassment of presenting a redacted version to the trial judge, particularly if he had not been advised that some aspects of the contents of his report were inappropriate and should not have been included. However, this case has a history of the redaction of experts’ reports on both sides and I think I should proceed in the fashion requested by the Defendant subject only to the approach I have sanctioned in relation to G.2 (see above).[39]I am, however, not persuaded to make the requirement to which I have referred the subject of an “unless order”. It has been the first occasion on which Professor Healy has put forward a report that did not meet the requirements of the particular piece of litigation and I am proposing to assume that he will accept and, so far as necessary, comply readily with the court’s requirements.[40]I do, however, have to say this: I took what might be regarded as a fairly benevolent view of the position the Claimants found themselves in when this case first came before me in October 2015. At that stage I felt that the Claimants’ new team was “playing catch up” and was facing a formidable and well-resourced legal team on the other side and it was necessary for the playing field to be levelled. Some accommodation seemed to me to be necessary, particularly as there appeared to be experts willing to support the case, a legal team prepared to advance it and funders willing to back it. That seems to remain the position. However, I felt at the hearing in February last year that the legal team had not focused sufficiently clearly on the damages aspect and were being unduly optimistic about the potential level of damages to be awarded if liability was established. I have sensed on this occasion that there is an optimistic expectation that the boundaries of the litigation can be extended beyond those that had previously been set. I should not need to say this, but any such expectation is entirely unjustified. That is intended as a very clear warning for the future.[41]Since I have not required the making of an unless order in relation to Professor Healy’s report, I do not intend that the order drawn up that gives effect to the agreement concerning Professor Hotopf’s report should be of that variety either. Nonetheless, the very closest attention must be paid to meeting the requirements of the order that is drawn up giving effect to this decision and the agreed matters. Not making an “unless order” should not be seen as a licence for a lack of focus. Disclosure[42]Since there is no application for specific disclosure before me, I will say nothing about the disclosure matters foreshadowed in the Claimants’ Skeleton Argument. However, I have said enough, I would have thought, to indicate that it is highly unlikely that I would be persuaded that there is any need for any further disclosure beyond that which I have previously ordered and which, as I understand it, has been provided. If the issue is simply obtaining copies of documents already the subject of disclosure, that is a purely administrative matter which I would hope it would not be necessary for me to have to supervise.[43]For the avoidance of doubt, those parts of Professor Healy’s report that should be redacted are those highlighted in the Schedule that was produced in paragraphs B.2.8, B.6.5, C.2.2, B.3.5, D.1, E.2 and F.4. Those aspects of the report are in addition to those other parts of the report (e.g. paragraphs D.2-D.4) where I have expressly identified matters that should be redacted. There are some areas (e.g. G.2) where I have invited Professor Healy to review the contents of his report in the light of my observations.[44]I should be grateful if Counsel would agree the terms of an order giving effect to this judgment.

Cited in 4 later judgments