Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27821/95

by Patricia R. SINCLAIR

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 February 1995

by Patricia R. SINCLAIR against the United Kingdom and registered on

7 July 1995 under file No. 27821/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national. Her date of birth is not

known. She is retired and resides in county Durham. She claims to be

suffering from a form of arachnoiditis, a disease causing severe pain

in the back and legs, as a result of a myelogram she underwent in which

Myodil, a spinal dye, was used.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. The Myodil litigation in general

When the potential link between Myodil and arachnoiditis was

realised, civil proceedings for negligence were instituted against

Glaxo Laboratories Ltd (hereinafter Glaxo), the manufacturers of

Myodil, and the Health Authorities of England and Wales.

On 19 December 1991 the High Court of Justice gave permission to

the plaintiffs in the action against the Health Authorities to

discontinue the proceedings before 15 January 1992. The court decided

that it would not make any order as to costs for plaintiffs who

discontinued before that date. It also ordered the Health Authorities

to continue to supply copies of their medical records to the plaintiffs

or potential plaintiffs in the proceedings against Glaxo.

The proceedings against Glaxo were organised as follows. There

was the generic claim concerning the liability of Glaxo for damages

caused through arachnoiditis being brought about by Myodil myelography.

All plaintiffs were parties to this claim, which was conducted as a

group action by a Steering Committee designated by the Group of

Solicitors involved in Myodil litigation. In addition to the generic

claim, there was a series of individual claims as to whether each

plaintiff was suffering from Myodil induced arachnoiditis. These were

handled by each plaintiff's solicitors.

The statement of claim in the generic action and Glaxo's defence

thereto were served before the end of June 1992. By the same time, the

consultants of the Steering Committee of the Myodil Solicitors Group

had met with the consultants of Glaxo and had agreed on "the essential

diagnostic criteria for Myodil-induced symptomatic arachnoiditis"

(hereinafter "the essential criteria").

It appears that the High Court judge appointed to hear the

litigation issued an order approving the essential criteria. Only the

persons who satisfied the essential criteria were admitted to the

litigation and were allowed to lodge individual claims. As agreed

between the Steering Committee and Glaxo, each potential plaintiff

would be examined by a neurologist who would provide a clinician's

report. Where appropriate the neurologist would refer the potential

plaintiff to a radiologist or neuro-radiologist to undergo a Magnetic

Resonance Imaging (hereinafter MRI) scan.

The essential criteria were clinical and radiological criteria.

The patient should have been injected with Myodil. There should be

radiological evidence of arachnoiditis not just at the site of the

initial pathology or surgery, but also at other levels. There should

have been no other exclusive cause for arachnoiditis. Finally, the

symptoms and clinical findings should match the anatomical distribution

of the arachnoiditis which had been demonstrated radiologically.

A number of potential litigants who had been granted legal aid

limited to all steps up to but excluding the issue of proceedings and

who were found not to satisfy the essential criteria agreed to have

their legal aid certificates "discharged". According to the rules

governing the granting of legal aid by the Legal Aid Board, persons who

have their legal aid certificate "discharged", are covered by legal aid

up to the date of the notice of "discharge". A "discharge" of a legal

aid certificate is to be distinguished from its "revocation". If a

legal aid certificate is "revoked", it is as if the person concerned

never had legal aid. As a result, the person concerned has to bear the

full cost of the work done under the "revoked" certificate.

On 23 November 1992 a directions hearing took place at the High

Court. The judge instructed that all individual claims had to be

notified to Glaxo by 1 February 1993 and that the court proceedings had

to be served by 1 March 1994. The general claim was to be heard in

October 1994.

The deadline for serving the individual claims was subsequently

extended to 1 September 1994 and the hearing of the generic action was

adjourned until 26 April 1995. On 21 December 1994 the court ordered

a further adjournment until October 1995 in the generic action. In

January 1995 the court authorised the belated serving of additional

individual claims. The Steering Committee promised that it would seek

no further extension in respect of individual cases.

In March 1995 Glaxo and the Steering Committee exchanged expert

evidence. On 5 July 1995 Glaxo made an offer to settle the action which

the Steering Committee advised the plaintiffs to accept. On

31 July 1995 the judge approved the settlement terms.

It is not clear whether a second action was ever brought by

persons who were found not to fulfil the essential criteria.

B. Particular circumstances of the applicant's case

The applicant had several operations on her back. She claims that

her doctor admitted to her that Myodil had been used in her case.

On an unspecified date, the applicant obtained a limited legal

aid certificate. She was examined by a neurologist and had an MRI on

8 December 1993. A report was prepared on 13 January 1994 which

concluded that even though there was documentary evidence that Myodil

was used for a myelogram in 1984, the findings did not satisfy the

essential criteria. A further report was prepared on 30 July 1994 by

a consultant neurologist who concluded that there was nothing to

suggest that Myodil had been ever used on the applicant. Although she

had radiological arachnoiditis, this was either due to other agents

that had been used or to the various procedures she had had. It was

concluded, as a result, that the essential criteria were not fulfilled.

On 11 November 1994 the applicant's legal aid certificate was

discharged on the ground that it was unreasonable in the particular

circumstances that she should continue to receive legal aid.

COMPLAINTS

The applicant complains that she was not allowed to take part in

the Myodil litigation. She argues that the essential criteria were

unduly restrictive. She does not invoke any provisions of the

Convention.

THE LAW

The applicant complains that she was not allowed to take part in

the Myodil litigation.

The Commission considers that the applicant's complaint should

be examined under Article 6 para. 1 (Art. 6-1) of the Convention which

provides that "in the determination of his civil rights and obligations

..., everyone is entitled to a fair ... hearing ... by a tribunal

established by law." In accordance with the Court's case-law, this

provision guarantees the right of access to a court, i.e. the right to

have a claim relating to civil rights and obligations brought before

a court or tribunal (Eur. Court HR, Golder v. United Kingdom judgment

of 21 February 1975, Series A no. 18, p. 18, para. 36). Moreover, there

can be no doubt that the applicant had a claim for compensation against

Glaxo which was of a civil nature.

The Commission notes that the main thrust of the applicant's

complaints is that the essential criteria were unduly restrictive and

it recalls that these criteria were agreed by the Steering Committee

of the Myodil Solicitors Group, which was conducting the group action,

and the defendants, Glaxo. However, it appears that the essential

criteria were also approved by a court order. Moreover, it is clear

that they were used by the domestic legal aid authorities to determine

the applicant's prospects of success if she were to join in the group

action. As a result, the responsibility of the United Kingdom under the

Convention could be engaged.

However, the Commission considers that Article 6 para. 1

(Art. 6-1) does not preclude the authorities from deciding various

issues affecting participation in a group action on the basis of

criteria established with the agreement of the defendant, provided that

the criteria are reasonable and that potential litigants who do not

fall within the criteria preserve the right to sue independently. The

applicant has not established that the criteria agreed between the

Steering Committee and Glaxo were unreasonable. Moreover, it clearly

emerges from the applicant's submissions that persons who were excluded

from the group action did not automatically lose the possibility of

suing Glaxo independently.

The Commission accepts that the applicant's financial situation

was such that, on the basis of all available indications, she could

not contemplate instituting proceedings Glaxo without legal aid.

However, the applicant was issued with a legal aid certificate. This

was limited to all steps up to but excluding the issue of proceedings

including obtaining counsel's opinion. Thus, its aim was to enable the

applicant to assess her prospects of joining in the group action always

with reference to the essential criteria. The certificate was

discharged on the ground that it was unreasonable in the particular

circumstances that she should continue to receive legal aid.

The Commission recalls that Article 6 (Art. 6) does not always

guarantee legal aid in civil cases. The means by which a State ensures

effective access to civil courts is within its margin of appreciation

(Eur. Court HR, Airey v. Ireland judgment of 9 October 1979, Series A

no. 32, p. 15, para. 26). Moreover, even where legal aid may be

available for certain types of civil action, it is reasonable to impose

conditions on its availability involving, inter alia, the financial

situation of the litigant or the prospects of success of the

proceedings (No. 8158/78, Dec. 10.7.80, D.R. 21, p. 95; No. 10871/84,

Dec. 10.7.86, D.R. 48, p. 154; No. 10594/83, Dec. 14.7.87, D.R. 52, p.

158).

The Commission considers that the discharge of the applicant's

legal aid certificate must have beeen related to a finding that she did

not fulfil the essential criteria for participation in the group

action. This finding was reached after obtaining expert medical and

legal opinion on the matter and both the medical and legal opinions

were covered by the applicant's legal aid certificate. In these

circumstances, it cannot be argued that the applicant's prospects of

success in the group proceedings were not properly weighed and that the

conditions imposed on availability of legal aid in this connection were

unreasonable.

A final issue which remains to be examined is whether the

applicant, once excluded form the group action, retained a realistic

possibility of instituting proceedings against Glaxo. The Commission

is, of course, not unaware of the financial implications of suing

Glaxo. However, the Commission notes that the applicant never applied

for legal aid in order to institute independent proceedings against

Glaxo. Moreover, there is no indication that the domestic legal aid

authorities would not consider the possibility of financing such

litigation, if it had prospects of success. As a result, the Commission

considers that the applicant cannot claim that the inevitable

consequence of exclusion from the group proceedings was inability to

sue.

It follows that no appearance of a violation of the applicant's

right of access to a court under Article 6 para. 1 (Art. 6-1) of the

Convention is disclosed. As a result, the application must be rejected

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SINCLAIR v. THE UNITED KINGDOM

SINCLAIR v. THE UNITED KINGDOM

LEXI