JUDGE GRANTS SUMMARY JUDGMENT AGAINST CLAIMANT IN ACTION AGAINST SOLICITORS AND LEADING COUNSEL

In Coote -v- Ullstein [2022] EWHC 606 (QB) His Honour Judge Gosnell (sitting as a judge of the High Court) granted the defendants’ applications for summary judgment in relation to a professional negligence claim being brought against them.  The judge held that the claimant could not establish she had lost anything of value.

“My own view remains, however, that on an objective assessment of the expert evidence the Claimant had no real prospect of success against SKB for the reasons outlined above. She therefore has no real prospects of success in this litigation because the loss of a chance on my assessment is less than 10% by some distance.”

THE CASE

The claimant had pursued an action against the manufacturers of the MMR vaccine, alleging that it had caused her epilepsy.  That action became statute barred and she brought this action against her former solicitors and Leading Counsel.

THE REASON THAT THE ACTION BECAME STATUTE BARRED

The judge explained how the limitation period came to be missed.

“It would appear (and I put it this way as it is not conceded by the Defendants in the professional negligence litigation) that the Defendants had believed that the ten year limitation period under the Consumer Protection Act 1987 ran from the date that the vaccine had been administered to the patient. It was subsequently discovered that the limitation period ran from the date the vaccine was shipped from the factory, in this case on 14th December 1988. This meant that the writ had been issued out of time and there was no provision to permit the extension of time or any suspension of the limitation period based on the Claimant’s disability. The allegation of negligence in the professional negligence proceedings is therefore that the Defendants failed to advise the Claimant accurately about the limitation period under the Consumer Protection Act 1987 with the result that her claim against SKB was issued out of time and therefore doomed to failure. “

THE DEFENDANTS’ APPLICATION FOR SUMMARY JUDGMENT AND/OR TO STRIKE OUT THIS ACTION

The defendants applied for summary judgment and/or to strike out the claim on the basis that the claimant could not establish she had suffered a loss. She could not prove that had she received correct advice about the limitation period she would have proceeded with her claim to the the point where she would have received damages by way of judgment or settlement.  In particular legal aid would not have supported the continuance of the claim, she would not have established causation, none of the allied claims had been settled. Indeed none of the MMR claimants succeeded in their claim.

“Further or alternatively, the Claimant cannot show that she has lost any real and substantial chance of recovering damages as a result of issuing her claim out of time because she had no real prospect of being able to prove defectiveness and/or that her epilepsy and developmental delay had been caused by administration of the MMR vaccine.”

THE DECISION: SUMMARY JUDGMENT FOR THE DEFENDANTS

The judge reviewed the legal principles in considerable detail.  He concluded that the defendants should be granted summary judgment.

93.I am acutely conscious that this is an application for summary judgment and not a trial. I have heard no evidence and will be making no findings of fact. My task is to look at the evidence in the round, including evidence which might in the future be available to the Claimant and decide whether her chances of success in this litigation are real, in that they are more than fanciful. The Defendants jointly submit that the Claimant has no real prospects of success in this litigation because she cannot prove that she has lost anything of value as a consequence of her losing the ability to pursue her claim against SKB due to the Defendants’ alleged negligence. This inevitably changes the focus of the enquiry to what the Claimant’s prospects of success were in the underlying litigation against SKB, if she had been able to issue her claim within the ten year limitation period. This again is not a “trial within a trial” but a broad assessment of what her prospects of success were in the original litigation on the basis of the evidence which she could rely on compared with the evidence which SKB would have been likely to have put before a court.

94.I have set out earlier in this judgment the appropriate legal test for dealing with professional negligence claims against legal advisers where the chance to pursue the claim to its conclusion was lost. First, the Claimant must prove what she would have done if she had received the benefit of competent advice. This must be proved on the balance of probabilities. In this case the allegedly negligent advice happened before the expiry of the limitation period in late 1998. At this point the Claimant had not issued proceedings. She did in fact instruct her solicitors to issue proceedings in January 1999 which is obviously something I can take into account when deciding whether she had a real prospect of proving this aspect of her claim. In my view the Claimant (through her litigation friend), would have no difficulty in proving in this litigation that she would have instructed her solicitors to issue proceedings in time if she had received competent advice about the expiry of the limitation period. The fact that she did in fact do so in the mistaken belief that the proceedings were issued in time is strong evidence to support this. A review of the documentation shows that Mrs Ann Coote has been determined throughout to do everything she can to pursue her daughter’s claim and it is fair to say that she has left no stone unturned in her efforts to prove that her daughter’s disability was caused by the MMR vaccine. I am satisfied that she would have instructed her solicitors to issue proceedings and do everything necessary thereafter to pursue the claim to its conclusion. On my assessment of the law set out above this is all she would have to prove so far as causation is concerned on the balance of probability. All the other issues relate to what third parties may have done and these would be assessed by this court on the basis of the loss of a chance.

95.The real issue in this application is what the Claimant’s prospects of success were in the underlying litigation. Has she lost something of value in the sense of a claim which had a real and substantial prospect of success? Mr Berkley QC appeared to concede that a judicial rule of thumb appears to have arisen that prospects of success of 10% or less are treated as negligible or at least insufficiently substantial to sound in damages. This is based on the judgments in Thomas and Thomas v Albutt [2015] EWHC 2187 (Ch) and Kingsley Napley LLP v Harris [2021] EWHC 901 (QB). I agree with his submission and, although the aetiology of this principle is unclear, it appears to have found some judicial favour.

96.The context in which this claim was being made is important. At one point in time there were approximately two thousand claimants in the MMR Litigation Group who were seeking to make claims against the various manufacturers. The Defendants claim that not one of these claims succeeded at trial and none received a voluntary settlement. One of the main reasons for the collapse of this group litigation was the discrediting of the methodology of the research done by Dr Andrew Wakefield into the connection between the MMR vaccine and autism. By early 2007 no supportive expert evidence had been found to justify the causal link between the MMR vaccine and epilepsy; in fact the reverse was true. Dr Andrew Green and the four consultants who took part in the screening process were all unable to support a causal link generally or in the Claimant’s case more specifically. This changed later in 2007 when Dr Kinsbourne reported that there was a causal link in Rachael’s case. The Claimant’s prospects of success in the original litigation therefore hinge on the chances of a court accepting the expert evidence of Dr Kinsbourne.

97.In order to pursue the claim to trial the Claimant would have had to convince the Legal Services Commission that it had good prospects of success (usually at least 50%). The views of the Legal Services Commission about Dr Kinsbourne’s evidence were expressed in submissions it made to the Funding Review Committee on 2nd May 2007 as follows:

It is fair to record that the Funding Review Committee did extend legal aid until the receipt of the Defence but I suspect the views expressed above might well have resurfaced once expert evidence was served by SKB as it inevitably would have been.

98.The relevance of the fact that the Claimant was publicly funded is that she would not have been able to continue to pursue the claim against SKB unless she could continue to convince the Legal Services Commission that her prospects of success were at least 50%.

99.It is important to record what the Claimant’s medical records show. Rachael was first admitted on 3rd March 1989 with what was thought to be a febrile convulsion which “lasted a few minutes”. It was thought likely to be related to the MMR vaccination nine days previously. Her next febrile convulsion was on 8th November 1989 and “lasted ten minutes”. She started to have drop attacks in 1990 and by August 1990 her diagnosis was “ primary generalised epilepsy – myoclonic”. She had both an EEG and CT around this time which were inconclusive but it is important to record that there was no history of meningitis or encephalopathy. This diagnosis from Dr Richard Newton, Consultant Paediatric Neurologist, was repeated over the years as her treating physician. He was asked by Mrs Ann Coote whether Rachael’s disability was caused by the MMR vaccine and he said he felt that this was unlikely.

100.This is not a promising beginning to start from. The complete absence of supporting epidemiological evidence is another significant obstacle. It is clear from reading the early opinions of the barristers instructed that they all considered that supporting epidemiological evidence would be essential to succeeding with the claim against the manufacturers of the vaccine. If researches revealed a number of children who had suffered epilepsy symptoms after being vaccinated, the manufacturers would no doubt claim these were random childhood illnesses and so epidemiological evidence would be necessary to show clusters of cases which could logically be linked to the vaccine. It would also help negate any development risks defence. Counsel for the Claimant in this hearing appeared to place the blame for this absence with the Second Defendant but there is an evidential burden now on the Claimant to show that this evidence could have been available at the trial against SKB which is something the Claimant is now not able to do, the Defendants would say because no such epidemiological evidence exists which is supportive.

101.The real issue however is what are the prospects that the court in 2009 would have accepted the evidence of Dr Kinsbourne on the likely medical causation of the Claimant’s disability. Having examined all the evidence very carefully I have concluded that the chances are nil or virtually nil. He reaches a number of conclusions which are logically unsupportable. I find myself agreeing with my American colleagues that his opinions lack evidential support and that he has a tendency to cherry-pick data which suit his opinion whilst discarding it if it does not. It does not help his credibility that he also reported in the case of Mr Deville opining that there was a causal link between his epilepsy and the vaccine only to be proved wrong when genetic testing proved to the contrary.

102.It is clear that his conclusion that the initial febrile convulsion on 3rd March 1989 may have been caused by the MMR vaccination is logical and supportable. It is likely that it was the measles component which was responsible as the seizure occurred nine days after vaccination. Dr Kinsbourne’s conclusion that the mumps component could also have been involved is unlikely to be correct (see paragraph 82 above). His suggestion that the flawed Urabe strain of the mumps component may have been responsible was clearly incorrect as the known complication was aseptic meningitis. Rachael did not have meningitis at any point in time.

103.Whilst it is likely that there was some anoxia, or more probably hypoxia, during Rachael’s first fit, Dr Kinsbourne does not appear to have considered how long this deprivation of oxygen lasted. The fact that it was of relatively short duration and that Rachael appears to have made a full recovery within a few days militates against a finding of hypoxic induced brain damage. The fact that the MRI scan in 2003 and CT scan in 2004 show no evidence of brain damage due to hypoxia reinforces the fact that it is unlikely that there was any lasting damage due to this febrile convulsion. As Professor Walker records febrile convulsions are relatively common and usually have a benign outcome.

104.The argument that there is no evidence of an alternative cause to her epilepsy in her medical records is valueless when one considers that epilepsy is often an idiopathic condition¹². The argument is also inaccurate in fact in that an examination of the 2003 MRI scan would have revealed a clear alternative explanation as found by Dr Jarosz and interpreted by Professor Walker. It is both their views that this sort of brain malformation shown on the scan can only have happened prior to birth. Professor Walker explains that a child with Dravet Syndrome does not normally have any symptoms until the first one or two years of life have passed. The failure of Dr Kinsbourne to examine and reflect on the MRI scan of 2003 is fatal to his credibility as a witness.

105.Counsel for the Claimant both emphasised that disputes in expert evidence can only normally be resolved at trial with full cross-examination of all witnesses. Whilst I accept this is generally correct I know that Dr Kinsbourne is now 91 years old and will not have been in clinical practice for about 32 years. It is not fair or realistic to expect him to give evidence to a court about issues this complex in a couple of years’ time. I am satisfied in any event from my examination of the material that his position is untenable for the reasons advanced by Professor Walker and summarised earlier in this judgment.

106.Counsel also cautioned me about making a premature decision when other evidence may become available to the Claimant before trial. I accept the fact that the Claimant’s solicitors have however said, in terms, that they have no intention of obtaining any more expert evidence as it is not required and that a previous stated intention to obtain a report from a paediatric neurologist did not produce a disclosable report. The expert evidence available to me on this application appears therefore to be what would be available at the trial of this claim. It is unlikely that lay witness evidence will have any impact on the core issue of medical causation of the Claimant’s disability.

107.I have taken into account the principles set out in Mount v Barker Austin set out above together with the Armory v Delamirie (1722) principle. This is not a case however where the solicitors have blithely carried on with the claim without advising their client of the hopelessness of the position. I have found that the messaging throughout was mixed and the Claimant was advised that there were difficulties in proving that there was clear link between the MMR vaccine and epilepsy. She was actually advised to discontinue the proceedings after the screening meeting with the experts because this link could not be proved. Whilst the Claimant persevered thereafter and was given some hope by the evidence of Dr Kinsbourne this was a developing picture which would only have got worse once SKB served their expert evidence. Although I have tried to be as generous as I can be in my assessment of the prospects of success I cannot ignore the fact that Dr Kinsbourne’s evidence would not have stood up to any significant scrutiny.

108.Similarly, although I accept that at some point in time leading and junior counsel advised that the Claimant had a 60% chance of success I do not know what material was before them when they made this assessment. I can only assume that once SKB served their expert evidence this assessment would have been reviewed and substantially reduced.

109.The likelihood is that once SKB had served their expert evidence those advising the Claimant would have been obliged to report to the Legal Services Commission that the chances of success were now significantly less than 50%. This would have resulted in the discharge of the legal aid certificate and the Claimant would have been compelled to discontinue the claim as she had no way of funding such expensive and perilous litigation privately.

110.My own view remains, however, that on an objective assessment of the expert evidence the Claimant had no real prospect of success against SKB for the reasons outlined above. She therefore has no real prospects of success in this litigation because the loss of a chance on my assessment is less than 10% by some distance.

111.I therefore intend to grant the Defendants’ applications for summary judgment against the Claimant on the grounds that the Claimant’s claim has no real prospects of success. I do not need to deal with the alternative ground based on CPR 3.4. I can say however that I agree with the Second Defendant that the Claimant’s case on causation has not been adequately pleaded. I would not however have struck out the claim but would have ordered the Claimant to amend her case to properly plead causation as this would have been a more proportionate response than striking the claim out, notwithstanding the long delay in correcting this error and the many opportunities the Claimant’s solicitors have had to deal with it.