AS TO THE ADMISSIBILITY OF

                      Application No. 28641/95

                      by Patricia A. TAYLOR

                      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 10 May 1995 by

Patricia A. TAYLOR against the United Kingdom and registered on

21 September 1995 under file No. 28641/95;

      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 1941. She is a housewife

and resides in Trollhättan, Sweden. She claims to be suffering from a

form of arachnoiditis, a disease causing severe pain in the back and

legs, as a result of myelograms 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 the

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.    Circumstances particular to the applicant's case

      The applicant had two myelograms in 1974. On 5 July 1991 the

applicant had an MRI Scan. On 13 July 1992 she was examined by a

specialist with a view to participating in the group action against

Glaxo. Her solicitors considered that the specialist's report was one of

the most clear-cut that they had seen, since the consultant had without

reserve confirmed that the applicant was suffering from Myodil induced

arachnoiditis. As a result, they issued a writ on her behalf.

      The applicant's case was subsequently reviewed by counsel who

expressed some concern that the site of arachnoiditis had not been

clearly identified. On 20 May 1994 a second specialist advised the

applicant's solicitors that her case needed further consideration. In

October 1994 counsel advised that the applicant should have a second MRI

scan. The applicant underwent such a scan on the basis of which the

second expert considered that there was no evidence of arachnoiditis

which would fall within the essential criteria. On 28 December 1994 a

third specialist issued an opinion favourable to the applicant's case.

      On 15 January 1995 counsel advised that the applicant did not fulfil

the essential radiological criteria. On 18 January 1995 the applicant's

solicitors advised her to withdraw from the litigation and proposed to

reach on her behalf an arrangement with Glaxo concerning costs. According

to the proposed arrangement, Glaxo would pay their own administrative

costs and would not seek to enforce any generic costs order against the

applicant. The applicant agreed.

      On 28 April 1995 her solicitors asked her to pay them by way of

costs and expenses £3,465.37 in instalments.

      In a letter to the applicant dated 28 July 1995 Dr B, an

arachnoiditis specialist from the United States, criticised the second

United Kingdom expert's opinion in rather strong terms.

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 would appear that the essential criteria

were also approved by a court order. As a result, the Commission is

prepared to assume that 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, the

decision to withdraw from the group action was taken by the applicant

herself after she had obtained expert medical and legal opinion on her

prospects of success, always with reference to the essential criteria.

It also 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 is, of course, not unaware of the financial

implications of such a course of action. Moreover, the applicant appears

not to qualify for legal aid according to domestic law. However, the

Commission recalls that, in accordance with its case-law, the

unavailability of legal aid for the institution of civil proceedings does

not always raise an issue under Article 6 para. 1 (Art. 6-1) of the

Convention. The prospects of success of the intended proceedings need to

be taken into consideration (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). However, the applicant has not taken any steps towards

the institution of such proceedings and, as a result, it is difficult,

if not impossible, for the Commission to assess what the prospects of

success of an independent action against Glaxo would have been. The

Commission, therefore, considers that, in these circumstances, 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. The application, therefore, 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