'Why have they let us down?'
The multi-party action brought by parents over the MMR vaccine did not even reach the courts. Jon Robins asks if such cases are destined to fail
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"How can they pull the rug from under us in this way when we are so close to trial?" asks Jackie Eckton, of this month's decision to remove public funding for the legal action by more than 1,000 claimants against the makers of the controversial measles, mumps and rubella (MMR) jab. Her eight-year-old son, Daniel, developed autism shortly after receiving the triple vaccination and ever since then Eckton has put her faith in the courts to prove a link that the Government has refused to investigate.
As Eckton sees it, the courtroom is the only place left for the families to explore these issues and she is dumbfounded to be left in the lurch so late in the day. The trial was set down for 28 days next April. "There are thousands of parents who have been fighting all this time and nothing has changed for the children - they are still autistic and with no sign of getting any better," she says. "The Legal Services Commission decided the case had a reasonable chance of success and then, all of a sudden, they have changed their mind. Why have they let it go on for so long?"
Many claimant lawyers have been equally bemused at the LSC's decision, but for different reasons. "While this is a disaster for the families, frankly I'm not that surprised that funding has been refused," says Mark Harvey, the secretary of the Association of Personal Injury Lawyers and a partner at South Wales firm Hugh James. "Many of us were sceptical about the case as the science hadn't been established and they looked like they were going to try and prove it in the court."
According to John Pickering, a partner at Irwin Mitchell who specialises in group actions: "The MMR action was always going to be a problematic case to get off the ground, especially in light of medical literature, whichincreasingly suggested doubts about the link between MMR and autism and the various bowel disorders." But he also points out that, like other complex multi-party actions, it faced an uphill struggle. "Frankly, unless the case is strong and the costs-benefit analysis can be established, then the LSC are going to be very anxious about being exposed to significant costs," he says.
Next week an LSC funding review committee will have a final say on whether or not to fund the MMR action. But if the commission sticks to its original decision and pulls the plug on the case, it will become the latest failed group action, to join a dismal roll call that includes the Norplant contraceptive litigation, the aborted attempt to take on the tobacco companies and the notorious benzodiazepine tranquilliser cases, which swallowed up £30m of taxpayers' money. None of those thousands of claimants ever saw a courtroom. More recently, there is a question mark hanging over the future of the Seroxat litigation, concerning some 4,000 people who have found themselves hooked to the antidepressant. The LSC refused public funding for that case at the end of last year and that decision is subject to an appeal. And it is not just complex product liability cases where there are such problems. The survivors and the families of those killed in the Potters Bar rail crash last Spring had their financial backing refused a few weeks ago.
"It has been galling to hear about the amount of money spent on MMR," comments Louise Christian, the co-founder of Christian Khan and lawyer for the Potters Bar group. "I was quite sure they were going to end up pulling the rug on this. Now it's just a rerun of the tranquillizer litigation."
According to Christian, the contrast between the two cases is "quite shocking". "Potters Bar is a major disaster involving people who lost their lives on public transport and the LSC were advised in no uncertain terms there would be no problem in proving public liability. But the Commission was prepared to pour a lot of money into something where the merits were speculative and the scientific evidence might not have been there."
Unsurprisingly, the MMR lawyers refute the suggestion that their action was "speculative". David Harris is senior partner at Alexander Harris, which is joint lead firm in the MMR litigation. He explains that the claims had to be made within the 10-year limit under consumer protection legislation. "In an ideal world we would prefer to have waited for five years when scientific research had really begun and then begun the action," he says. Harris argues that public money should be available for funding scientific research for cases. "What is funding being provided for?" he asks. "If it's there to prove the case - and the answer has to be yes - doesn't that involve funding the necessary research?"
The Government took a surprising and unprecedented approach to these funding issues last month when the Department of Constitutional Affairs directly gave £800,000 to help the families of the Omagh bombing victims mount a case against five men suspected of plotting the attack. Lord Filkin, a junior minister in the Department for Constitutional Affairs, said that it was not in the interests of justice for this action to collapse. "We should not forget that 29 people and unborn twins lost their lives and hundreds more were maimed physically and mentally," he said. According to the peer the action would be backed "under legal aid rules and regulations".
The civil rights group, Liberty, believes that such an approach would lead to "an arbitrary and politically motivated justice system". According to their barrister: "There is a real danger that this has opened the floodgates for legal aid to be granted in cases that grab headlines." However, Christian believes that a similar case could be made for her clients and is seeking a meeting with ministers.
All lawyers agree on one thing, though: that without public funding, many of the more complex group actions are doomed to failure. It was envisaged that under the Access to Justice reforms that conditional fee agreements would enable people to join in actions where legal aid was not available.
So where do these funding problems leave the future of groundbreaking class actions? John Pickering argues that the calculation as to whether a case proceeds is an economic one and not whether there is a matter of public concern that needs to be tested. He believes that it is time for a re-think on how such cases are handled. "We should be looking at an inquisitorial approach to get to the bottom of these cases," he argues. "Because, when all is said and done, there are real issues of concern here that just aren't being tested."