AS TO THE ADMISSIBILITY OF

                      Application No. 28639/95

                      by Joyce G. WOODLEY

                      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 27 February 1995 by

Joyce G. WOODLEY against the United Kingdom and registered on

21 September 1995 under file No. 28639/95;

      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 born in 1927. She is retired and

resides in Hertfordshire. 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 1976 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

      On an unspecified date, the applicant obtained a limited legal aid

certificate with a view to participating in the Myodil litigation.

      On 11 January 1994 the applicant had an MRI. On 20 May 1994 a neuro-

radiologist opined that, although there was clear evidence of

arachnoiditis, this was limited to the surgery site and, as a result, it

was not possible to conclude that Myodil was the most likely cause.

      On 26 July 1994 the applicant's solicitors suggested that she should

apply for the discharge of her legal aid certificate.

      On 21 November 1994 the neuro-radiologist confirmed that, although

the applicant had severe arachnoiditis and its appearance suggested that

it was probably due to Myodil, the distribution was only at levels of

previous surgery. Therefore, the case lay just outside the essential

criteria by which it had been agreed that the most likely cause could be

attributed to Myodil.

      On 31 December 1994 a further medical report was prepared by another

neurologist who identified another possible cause for the applicant's

symptoms, epidural fibrosis.

      On 4 January 1995 the applicant's legal aid certificate was

discharged on the ground that it was unreasonable in the circumstances

that she should continue to receive legal aid.

      On 17 September 1996 the applicant was advised by a different firm

of solicitors that her case could not be included in a new group action

against Glaxo for which legal aid would be sought. The solicitors

considered that the statutory limitation period would be difficult to

overcome in the applicant's case, since the courts would probably

consider that more than three years had passed since the applicant had

first known that she had been injured as a result of an act or omission

of Glaxo. Although it was within the courts' discretionary power not to

apply the three-year rule, the solicitors considered that there was not

likely that this would occur in the applicant's case, particularly since

there had been Myodil litigation previously.

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 in this connection 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 been 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 from 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 domestic legal aid authorities appeared to have

always seriously considered the possibility of financing such litigation,

if it had prospects of success. It also notes that the applicant

considered the possibility of joining in a second group action for which

legal aid would be sought.

      Although on 17 September 1996 the applicant's solicitors advised her

that there would be problems in overcoming the three-year statutory

limitation period, the courts were never given the opportunity of

examining the issue of whether the applicant's claim had become statute-

barred. As a result, the Commission cannot exclude the possibility that

the applicant herself might bear part of the responsibility, especially

since her previous legal aid certificate had been discharged on 4 January

1995, i.e. more than twenty months before she was first advised that a

problem of statutory limitation arose. In these circumstances, the

Commission considers that the applicant cannot claim that the inevitable

consequence of exclusion from the original 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