Judgment following the MMR/MR Vaccine Litigation Case Management Conference

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Case No: S/01/0173 and others
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 8 April 2005

Before :

THE HONOURABLE MR JUSTICE KEITH
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Between:

Paul Sayers and othersClaimant
- and -
(1) Smithkline Beecham Plc
(2) Smith Kline & French Laboratories Ltd.
(3) Merck & Co. Inc
(4) Sanofi Pasteur MSD Ltd. (formerly known as Aventis Pasteur MSD Ltd.)Defendants

Hearing date: 17 March 2005
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Keith:

Introduction
1.The latest case management conference in the MMR/MR Vaccine Litigation took place on 17 March 2005. The new twist in the story is that limited public funding has been restored for a small number of the claimants. As before, all references in this judgment to the defendants are to the corporate defendants unless otherwise stated, and depending on the context, references to the claimants include their litigation friends - for the most part, one or other of their parents.

2.The reason for the limited restoration of public funding for a small number of the claimants can be traced to an important case management decision made by Bell J. in the early stages of the litigation. The overwhelming majority of the claimants were said to suffer from disorders in the autistic spectrum and inflammatory bowel disorder ("the ASD/IBD claimants"). Bell J decided that the alleged link between the vaccines and those disorders should be tried as a preliminary issue. The alleged link between the vaccines and other disorders - deafness, epilepsy and arthritis to name but a few - was to be investigated at a later stage. The claimants who have had their legal aid certificates restored are those claimants who are said to suffer from conditions other than disorders in the autistic spectrum and inflammatory bowel disorder ("the non-ASD/IBD claimants"). The claims of the ASD/IBD claimants are no longer being publicly funded. A few of them have issued a claim for judicial review of the decision of the Funding Review Committee of the Legal Services Commission ("the Commission") refusing to restore their public funding, but that claim has not yet been decided.

3.The claimants fall into five categories. Some of those categories were identified in the order I made on 24 September 2004 following the case management conference which took place on 26 and 27 July 2004. I shall refer to that order as "the September 2004 order". The time for compliance with some of the directions in the September 2004 order was extended by subsequent orders, and all references hereafter to the dates by when certain steps required by the September 2004 order had to be taken are to those extended dates.
Category (i): the non-responders

4.In para. 1 of the September 2004 order, I required the claimants who had failed to notify the relevant defendant's solicitors whether they intended to discontinue or proceed with their claims to do so by 28 February 2005. This was an "unless order". It provided that if they did not do so, their claims would be struck out with an appropriate order for costs. A number of these claimants did not notify the relevant defendant's solicitors of their intentions by 28 February 2005. The unless order therefore took effect according to its terms, and the claims of these claimants have now been struck out with the orders for costs set out in para. 1 of the September 2004 order. The order which I make to reflect that is that set out in para. 1 of the draft directions proposed by all the defendants.
Category (ii): the non-compliers

5.In para. 2 of the September 2004 order, I required the claimants who had notified the relevant defendant's solicitors that they intended to discontinue their claims but who had not served and filed a notice of discontinuance
(a) to serve and file a notice of discontinuance in accordance with rule 38.3 of the Civil Procedure Rules, or
(b) to agree terms with the relevant defendant's solicitors for the disposal of their claims, or
(c) to notify the relevant defendant's solicitors that they intended to proceed with their claims after all,
by 28 February 2005. The last of these three options was intended to give effect to the concerns which I expressed in para. 31 of my judgment of 30 July 2004 that many of the claimants who had indicated that they intended to discontinue their claims may have done so without fully appreciating the ramifications of what they had done. A number of these claimants did not take any of the three options open to them. In my opinion, the time has now arrived for these claimants to commit themselves to one of the three options. They will have had the opportunity to consider the bulletin circulated by Mr Augustus Ullstein QC and Mr Richard Follis of Alexander Harris - a bulletin which identified the claimants' options and explained the various consequences of exercising them. Four weeks is a sufficient time to enable these claimants to reach a decision if they have not done so already, with the sanction of an unless order striking out their claims if they fail to do so. Accordingly, the order which I make is that set out in para. 2 of the draft directions proposed by all the defendants, with the addition of the words "or to notify the relevant defendant's solicitors that he/she intends to proceed with his/her claim" after the words "for the disposal of their claim", and the substitution of the words "the compliance date" for the words "4.00 pm on 15 April 2005". The compliance date will have to be identified elsewhere in the order, and the order should therefore provide as follows:
"Unless otherwise stated, the date and time for compliance with the terms of this order shall be 4.00 pm on the day 28 days after (a) the service of this order on the solicitors of those claimants who are legally represented or (b) the notification of the terms of this order to the litigation friends of those claimants (or to those claimants if they do not have litigation friends) who are not legally represented. Such date and time will be referred to in this order as 'the compliance date'."
Category (iii): the discontinuers

6.A number of claimants have served notices of discontinuance on the relevant defendant's solicitors. Those notices have taken two forms: (a) a notice of discontinuance in Form N279 (which is the form which has to be used unless a variation to it is required by the circumstances of the particular case: rules 4(1) and 4(2) of the Civil Procedure Rules), and (b) a notice of discontinuance in a bespoke form drafted by their solicitors. Some of these notices of discontinuance were served pursuant to an agreement with the relevant defendant settling or compromising the claims to which they related. I deal with those notices of discontinuance later on in this judgment when I address category (iv). For the moment, I am only dealing with those notices of discontinuance which were not served pursuant to such an agreement.

7.Notices of discontinuance in Form N279. For the reasons given in paras. 25-29 of my judgment of 30 July 2004, the approval of the Court for the discontinuance of claims otherwise than pursuant to an agreement to compromise or settle the claims is not required under rule 21.10(1) of the Civil Procedure Rules, but the permission of the Court to discontinue such claims is required under rule 38.2(2)(c) of the Civil Procedure Rules if the claim forms of the claimants to whom the notices relate named at least one other claimant. A small number of those claimants whose claim forms named at least one other claimant, and who have served notices of discontinuance in Form N279 otherwise than pursuant to an agreement to compromise or settle the claims, have said, in the answers they have given to the questions set out in Schedule 4 to the September 2004 order ("the Schedule 4 questionnaires"), that they wish to proceed with their claims. Thus, permission to discontinue their claims will not be given to those claimants, and they will be treated as being in category (v), i.e. the continuers. But save for those claimants, I give permission to those claimants
(a) whose claim forms named more than one claimant,
(b) who have served notices of discontinuance in Form N279 otherwise than pursuant to an agreement to compromise or settle their claims, and
(c) who have not since then said that they wish to proceed with their claims,
to discontinue their claims. Those discontinuances will take effect as from the date of service of the notices of discontinuance in each case. The order which I make to reflect that is that set out in para. 2 of the revised draft directions proposed on behalf of Sanofi Pasteur MSD Ltd. (the new name of Aventis Pasteur MSD Ltd.) ("SPMSD"), substituting "the relevant defendant's solicitors" for "SPMSD" and adding the words "who has not since then notified the relevant defendant's solicitors that he/she wishes to proceed with the claim, who" after the words "Form N279".

8.The notices of discontinuance of those claimants who served notices of discontinuance in Form N279 otherwise than pursuant to an agreement to compromise or settle these claims and whose claim forms did not name another claimant took effect according to their terms. But there are some claimants who, despite their notices of discontinuance, have said that they wish to proceed with their claims. That is not surprising. The concerns which I expressed in para. 31 of my judgment of 30 July 2004 were not limited to those claimants who had merely indicated that they intended to discontinue their claims. Those concerns also applied to the many claimants who had already served notices of discontinuance. I wanted to give them a final opportunity to reconsider their position once they had had a proper understanding of the effect of exercising their various options. That reconsideration has resulted in a small number of claimants - who are suing Merck & Co. Inc. ("Merck") and SPMSD - stating that they wish to proceed with their claims.

9.Are they entitled to? Merck and SPMSD say not. They argue that the proceedings to which these claimants' claims related came to an end on the dates when the notices of discontinuance were served: see rules 38.5(1) and 38.5(2) of the Civil Procedure Rules. There is no mechanism in the Civil Procedure Rules for restoring them. In any event, there is nothing in the Civil Procedure Rules which permits a claimant to withdraw a valid notice of discontinuance, or which entitles the Court to order that a valid notice of discontinuance be set aside, once it has been served on the defendant. A claimant who wishes to pursue a claim which has been discontinued cannot revive it: he must issue fresh proceedings. Merck and SPMSD recognise that that is not a realistic option for the claimants, not least because the claimants' claims under the Consumer Protection Act 1987 have almost certainly been extinguished by the operation of the 10 year limitation period which applies to such claims, but they assert that that is the claimants' only option.

10.However, Merck and SPMSD both say that it is unnecessary and inappropriate for me to address that argument now. It is unnecessary because the issue does not arise unless or until one or more of these claimants make a properly formulated application to the Court, accompanied by such evidence as the claimants wish to rely upon. It is inappropriate because these claimants should be given the opportunity to obtain proper legal advice on the issue. They have not had such advice, because Mr Ullstein is generously looking after the interests of those who do not wish to proceed with their claims (and therefore he is not looking after the interests of these claimants who want their claims to proceed), and because the solicitors instructing Mr Robin Oppenheim represent only those claimants for whom limited public funding has been restored (and none of these claimants - with the possible exception of one or two - come into that category).

11.I agree that these considerations make it both unnecessary and inappropriate for me to decide this issue. The consequence is that the proceedings on the claims of all the claimants who have served notices of discontinuance in Form N279 otherwise than pursuant to an agreement to compromise or settle their claims, and whose claims did not name another claimant, were brought to an end on the dates on which the notices of discontinuance were served. The order which I make to reflect that is that set out in para. 1 of the order proposed on behalf of SPMSD, substituting "the relevant defendant's solicitors" for "SPMSD" and adding the word "who" after the words "Form N279". But that will be without prejudice to (a) any application by any of these claimants to apply for permission to withdraw their notices of discontinuance or for their notices of discontinuance to be set aside, such application to be filed by the compliance date, and (b) the contention of Merck and SPMSD that the Court has no power to grant such orders. It is unnecessary to spell out (b) in the order, but (a) is provided for in that part of the order to which I refer in para. 38 below.

12.Notices of discontinuance in the form drafted by the claimants' solicitors. A number of claimants have served notices of discontinuance which do not follow the wording of Form N279. Form N279 requires claimants to tick one of two boxes. The first box is to be ticked if a claimant wishes to discontinue the whole of his claim. That box says that the claimant "discontinues all of this (claim)". The second box is to be ticked if a claimant wishes to discontinue part of his claim, in which case he must specify the part of his claim which he is discontinuing. The form which some of the claimants have used is a form which does not include the two boxes to be ticked, but simply states:
"The Claimant discontinues all of this Consumer Protection Act 1987 claim against the [relevant] defendant ....."
It is unclear what the claimants are seeking to do. At first blush, they appear to be discontinuing only their claims under the 1987 Act while purporting to preserve the other claims pleaded in their writs or claim forms, namely their claims for negligence and breach of statutory duty, to the extent that those claims had not been previously abandoned. But that may not be correct because the language they have used follows the language of the first box to be ticked in Form N279, which is the language to be used when the whole of the claim is to be discontinued.

13.If the claimants' intention had been to discontinue the whole of their claim, they should have used Form N279 and ticked the first box. If their intention had been only to discontinue their claims under the 1987 Act, they should still have used Form N279, ticked the second box, and added the words "the claim under the Consumer Protection Act 1987". If Mr Ullstein had been able to confirm to me that all the claimants who had served notices of discontinuance in this form were intending to discontinue the whole of their claim, a pragmatic solution to the problem would have been available. I could have utilised rule 3.10 of the Civil Procedure Rules to order that the notices of discontinuance which are not in Form N279 be treated as valid notices of discontinuance discontinuing the whole of the claimants' claim as from the date of service of the notices of discontinuance in each case.
14.However, that is not possible because Mr Ullstein has not been able to confirm that all the claimants who have served notices of discontinuance in this form were intending to discontinue the whole of their claim. In these circumstances, it will be necessary for the claimants by the compliance date to serve a notice of discontinuance in Form N279, or to notify Merck's solicitors that they wish to proceed with their claim. If they do neither, their claims will be struck out. The order which I make to reflect that is that set out in paras. 6 and 7 of the draft specific directions proposed by Merck, substituting the words "the compliance date" for the words "4.00 pm on 15 April 2005". This order applies only to those claimants suing Merck, because different considerations apply to those claimants suing Smithkline Beecham Plc and Smith Kline and French Laboratories Ltd. ("SK") and SPMSD. I appreciate that it may well be tiresome for these claimants to be asked to sign yet more forms: they could realistically have thought that signing the bespoke forms prepared by their solicitors would have brought them a measure of closure. But there is no other sensible way of getting round the problem which has been identified with the forms which the claimants have signed.
Category (iv): the compromisers

15.Prior to the last case management conference, each of the defendants had offered the claimants terms on which they were prepared to settle the claimants' claims. It was common ground that the Court's approval of the terms of settlement was required under rule 21.10(1) of the Civil Procedure Rules since the claimants should all be treated as under a disability. At the last case management conference, I was asked to approve in principle the terms of settlement which were on offer, leaving it to the claimants to decide in due course (if I approved the terms of settlement in principle) whether to accept the terms of settlement offered by the defendants. Having considered the terms of settlement offered by each of the defendants, I approved them in principle. Many of the claimants have now served on the defendants notices of discontinuance or draft consent orders for the dismissal of their claims on the basis of the terms on offer which I approved, or have notified the defendants in some other way that they wish to accept the defendants' offers. The defendants now ask me to approve the terms of settlement in each of those cases or to make orders which have the effect of regularising the claimants' acceptance of those offers. It is necessary to consider the claims brought against each of the defendants in turn.

16.The claims brought against Merck. The terms of settlement originally offered by Merck required the claimants to serve notices of discontinuance in respect of the whole of the claim, and to undertake that they would not make any other claim, either in the UK or elsewhere, arising out of facts which were the same or substantially the same as those relating to the discontinued claim. A number of the claimants accepted this offer by serving notices of discontinuance discontinuing the whole of their claim and providing Merck's solicitors with an undertaking in the form which had been sought. However, at the last case management conference, Mr Jonathan Waite QC for Merck accepted that the claimants should be able to make another such claim if the Court permitted the claimants (a) to be discharged from their undertakings and (b) to make another claim. He also said that if the Court discharged any of the claimants from the undertakings which had been given on their behalf and permitted the claimant to make a new claim on the same or substantially the same facts against Merck, Merck would no longer be bound to give the claimants the costs amnesty relating to the present claim which the claimant would otherwise have been entitled to. I approved these revised terms of settlement in principle. Following the hearing, the claimants were sent a standard form specimen letter by which the claimants could accept this revised offer. The claimants' responses have taken three forms, and I must deal with each separately.

17.First, there are some claimants who served notices of discontinuance in Form N279 accepting Merck's original offer, but who have not accepted the revised offer. Merck's solicitors correctly assumed that I would not approve terms of settlement which were based on the original offer without there being provision for the claimants to be released from their undertakings. Effect can be given to that by simply directing that such claimants may apply to the Court to be released from their undertakings, though that, of course, is no guarantee that the Court will agree to them being released from their undertakings. One can think of many reasons why the Court would be extremely reluctant to do so. But I approve the settlement of the claims of each of the claimants on the terms set out in the original offer, on the basis that they have permission to apply to the Court to be released from their undertakings. The order which I make to reflect that is the first alternative order set out in para. 9 of the draft specific directions proposed by Merck.

18.Secondly, there are some claimants who served notices of discontinuance in Form N279 accepting Merck's original offer and who have also accepted the revised offer. I approve the settlement of the claims of each of these claimants on the terms set out in the revised offer. The order which I make to reflect that is that set out in paras. 11 and 13 of the draft specific directions proposed by Merck.

19.Thirdly, there are some claimants who have accepted Merck's revised offer but who have never served a notice of discontinuance in any form. Since a condition of Merck's offer was the serving of a notice of discontinuance, these claimants have two options: to serve a notice of discontinuance in Form N279 or to proceed with their claim. If they wish to serve a notice of discontinuance, they should do so by the compliance date. If they wish to proceed with their claim, they should notify Merck's solicitors of their intention to do so, and should serve on Merck's solicitors a completed Schedule 4 questionnaire, by the compliance date. If they fail to take either step, their claims will be struck out. The order which I make to reflect that is set out in para. 15 of the draft specific directions proposed by Merck, substituting the words "the compliance date" for the words "4.00 pm on 15 April 2005".

20.Finally, Merck's solicitors have identified a few notices of discontinuance which are defective in form, such as where no box has been ticked, or where Merck has been incorrectly described, or where the form has been signed by a parent (a) who is not the claimant's litigation friend or (b) when the claimant does not have a litigation friend. It is unnecessary to require the claimants to re-serve the notice in the correct form, and the order which I make pursuant to rule 3.10 of the Civil Procedure Rules is that such defective notices of discontinuance be deemed valid for the purpose of discontinuing the whole of the claim brought against Merck. This also applies to some of the claimants suing SK: SK's solicitors have identified a few notices of discontinuance which are defective in that the claimants purported to discontinue their claim against SK's solicitors rather than SK. In case this applies to other claimants suing SK and to claimants suing SPMSD as well, this order will also apply to their claims. The order which I make to reflect that is set out in para. 17 of the draft specific directions proposed by Merck, suitably adapted to cover all the defendants.

21.The claims brought against SPMSD. SPMSD was originally content for the claimants to agree to the dismissal of their claims under the 1987 Act only. That was because its case was that any other claims pleaded in the writs or claim forms had been abandoned, because these claims had not been pleaded in the particulars of claim filed by the 8 lead claimants. However, the terms of settlement originally offered by SPMSD required the claimants to agree to the dismissal of their "claim". A number of the claimants signed draft consent orders for the dismissal of their "claim". At the last case management conference, Mr George Leggatt QC for SPMSD accepted that, even though such consent orders did not state in terms that the claim being dismissed was only the claim under the 1987 Act, that was its effect. Accordingly, the terms of settlement offered by SPMSD which I approved in principle were terms of settlement which required the claimants to agree to the dismissal of their claims under the 1987 Act. A number of the claimants (including some of those who signed the original draft consent order) have signed a draft consent order for the dismissal of their claims under the 1987 Act. For the reasons which I gave when approving the terms of settlement in principle, I am prepared to approve the dismissal of the claimants' claims under the 1987 Act pursuant to the terms of settlement offered by SPMSD.

22.But SPMSD is no longer content with the dismissal of the claims under the 1987 Act only. It wishes to bring finality to the exercise. I understand that concern, as did Mr Ullstein. If Mr Ullstein had been able to confirm to me that the claimants who had signed draft consent orders for the dismissal of their claims under the 1987 Act against SPMSD were agreeing to the dismissal of their other claims as well, I would have been content to make such an order as gave effect to that agreement. But since he was not able to confirm that, the only appropriate course for me to take is to direct that these other claims should be struck out on the compliance date, unless the claimants (a) sign a draft consent order for the dismissal of these other claims and serve it on SPMSD's solicitors by the compliance date, or (b) notify SPMSD's solicitors by the compliance date that they wish to proceed with these other claims, in which case they must serve a completed Schedule 4 questionnaire by the compliance date. Mr Ullstein did not think that the claimants would be disadvantaged by an order that these other claims be struck out in these circumstances. It would be open to them to apply for the striking out of these other claims to be set aside if, for example, further scientific developments made these other claims stronger, and the time limit of 14 days imposed by rule 3.6(2) of the Civil Procedure Rules would not apply to such an application. The order which I make to reflect all that is that set out in paras. 4 and 5(1) of the draft directions proposed by SPMSD, but I leave it to SPMSD's legal team to draw up the appropriate amendments to be made to para. 5(2) of the draft directions.

23.One of the claimants suing SPMSD has adopted an inconsistent position. That is Melissa Wickens. She is claiming judicial review of the Commission's decision to discharge her legal aid certificate. However, a signed draft consent order was sent to SPMSD's solicitors in which she purported to agree to the dismissal of her claim under the 1987 Act. In my opinion, she should be given an opportunity to reconsider whether she really wanted to send a draft consent order while her claim for judicial review is pending. The appropriate order to make in her case is that set out in paras. 6(1)-(3) of the directions proposed on behalf of SPMSD, save that para. 6(3) should read: "If the claimant fails to comply with the above, her claim should be treated as having been dismissed on the terms of the draft consent order signed by her".

24.The claims brought against SK. The terms of settlement offered by SK did not mandate the way in which the claimants should bring their claims to an end if they chose to accept the terms on offer: it was for the claimants to decide whether to serve notices of discontinuance or to agree to their claims being dismissed. Some have served draft consent orders for the dismissal of their claims, and some have served both.

25.Like SPMSD, SK were originally content for the claimants to discontinue (or agree to the dismissal of) their claims under the 1987 Act only. Accordingly, the terms of settlement offered by SK which I approved in principle were terms of settlement which required the claimants to discontinue (or agree to the dismissal of) their claims under the 1987 Act. Unfortunately, the relevant appendix to the September 2004 order, which identified the terms on which the claimants were agreeing to the dismissal of their claims under the 1987 Act, did not make it clear that that was the only one of their claims which they were agreeing should be dismissed. I make such order as is necessary to correct that mistake. For all these claimants, I approve the settlement of their claims under the 1987 Act on the terms of settlement offered by SK. For all those claimants who chose to accept SK's offer by serving notices of discontinuance, and whose claim forms named more than one claimant, I give permission to them to discontinue their claims under the 1987 Act.

26.Again like SPMSD, SK are no longer content with the dismissal or discontinuance of claims under the 1987 Act only. They too wish to bring some finality to the exercise. The order which I propose to make in relation to those claims against SK other than the claims under the 1987 Act mirrors the approach set out in para. 22 above, suitably adapted to reflect the alternative ways in which claimants suing SK could bring their claims to an end.

27.The draft directions proposed by SK do not follow the structure or language of the draft directions proposed by Merck and SPMSD. I want the order which I make to appear as seamless as possible, and it will therefore be necessary for SK's legal team to draw up the orders which I have made in respect of the claimants suing them so as to mirror, in structure and language, the orders I have made in respect of the claims brought against Merck and SPMSD.
Category (v): the continuers

28.Those claimants who intend to proceed with their claims come within three categories. First, there are the ASD/IBD claimants. Only a very small number of them are intending to proceed with their claims, and the overwhelming majority, if not all, of them are intending to do so only if public funding for their claims is restored. Secondly, there are the non-ASD/IBD claimants. 83 of them had had their public funding restored to a limited extent by 14 March 2005, and the Commission were considering the cases of 27 others. But funding had been restored to them only for the purpose of investigating whether there was an arguable case for asserting a link between the vaccines and the disorders from which they suffer. The legal aid certificates of these claimants are currently said to authorise expenditure up to a maximum of £1,000.00 to investigate that link. That may not go very far, and there is some evidence that some claimants have authority to incur expenditure up to a maximum of £10,000.00. Thirdly, there are some claimants who fall into both categories, i.e. who are suffering from both disorders in the autistic spectrum and inflammatory bowel disorder and other disorders. I was told that they have been treated by the Commission as if they were ASD/IBD claimants, i.e. their claims are not being publicly funded.

29.However, were it not for the fact that particular orders are sought on behalf of the non-ASD/IBD claimants, there would have been no need to distinguish between these three categories of claimants. That is because the claims of the ASD/IBD claimants are no further advanced than the claims of the non-ASD/IBD claimants. That itself is the consequence of the claims of the ASD/IBD claimants not having been investigated pending the determination of the claims of the 8 lead claimants. So although the orders which I make in respect of the non-ASD/IBD claimants will not be the same as the orders which I make for the other claimants, it must be appreciated that in terms of investigating the claims of all the claimants who wish to proceed with their claims, we are back to where we were some time ago.

30.In para. 3 of the September 2004 order, I required the claimants who notified the relevant defendant's solicitors that they intended to proceed with their claims to serve Schedule 4 questionnaires by 28 February 2005. A few of them have not done so. The time has now arrived for them to do so. Four weeks is a sufficient time for them to do so, with the sanction of an unless order striking out their claims if they do not. The order which I make to reflect that is that set out in para. 19 of the draft directions prepared by all the defendants, with the substitution of the words "paragraph 3 of, and Schedule 4 to," for the words "paragraph 3 and Schedule 4 of" and the words "the compliance date" for the words "4.00 pm on 15 April 2005".

31.The real issue relating to those claimants who wish to proceed with their claims relates to what order should be made to progress their claims. The claims of these claimants have been considerably delayed as a result of (a) the decision to deal with the claims of the 8 lead claimants first and (b) the withdrawal of public funding for the ASD/IBD claimants. The defendants understandably want the outstanding claims to be brought on as quickly as possible. To enable (a) the defendants to know the nature and strength of the outstanding claims and (b) the court to make sensible and informed orders for the future management of the case, the defendants asked the court to order the claimants to serve
(a) copies of all their medical records (or to provide the relevant defendant's solicitors with a signed consent form authorising the relevant defendant's solicitors to obtain them),
(b) a medical report setting out the nature of each claimant's disorder, the basis upon which it is said that the vaccines caused that disorder, and the mechanism by which they did so, and
(c) a substantive response to question 14 of the Schedule 4 questionnaires, which required the claimants to set out their proposals for the management of the litigation,
in time for the next case management conference, which the defendants suggest should be in July.

32.There is much in the defendants' submissions with which I agree. The pace of the litigation should be dictated by the court, not by the Commission - subject only to the Commission's legitimate wish to have the opportunity to take stock of the litigation for the purpose of deciding whether to authorise further expenditure on it. The important step of commissioning reports to identify the nature of each claimant's disorder, the basis upon which it is alleged that the vaccines caused that disorder, and the mechanism by which the vaccines are alleged to have done so, will have to be taken in any event. A timetable which requires at least that step to have been taken by July should galvanise the Commission into providing proper funding to enable that step to have taken place.

33.The timetable suggested by the defendants is opposed by the non-ASD/IBD claimants - not so much on the basis that it is a timetable which the Commission says cannot be kept to, but rather on the basis that, even if the non-ASD/IBD claimants were not publicly funded at all and had the resources to finance the litigation themselves, the timetable would still be one which could not be complied with. Before any informed decision can be made as to whether the claims of the non-ASD/IBD claimants should be proceeded with, three steps have to be taken:
(i) The non-ASD/IBD claimants' medical records will have to be obtained, though that is not going to be a problem, because those records will already be with the solicitors who previously represented them.
(ii) Upon the basis of those records, a judgment can be made on (a) the nature of the condition from which the non-ASD/IBD claimants are suffering, and (b) how soon after being vaccinated with the defendants' vaccines the non-ASD/IBD claimants began to present with symptoms of the disorders from which they suffer, so as to suggest a temporal link between the vaccines and those disorders.
(iii) Armed with that information, experts with the relevant expertise can consider and report on whether there is an arguable scientific link between the vaccines and those disorders.
These steps would be required even if the non-ASD/IBD claimants were funding the litigation themselves. The only significant difference as a result of the non-ASD/IBD claimants being publicly funded is that a solicitor's report setting out the information in step (ii) is required by the Commission before it can authorise the expenditure necessary for step (iii). But even without that, Mr Oppenheim has told me that these steps simply cannot be completed by July. The best estimate at present as to when they can be completed by is the end of November, with the result that the Commission will only just have been in a position to decide whether to continue to fund the claims of individual non-ASD/IBD claimants by the time of a case management conference in January 2006.

34.To a great extent, I have to take on trust what Mr Oppenheim has told me. I have little alternative when responsible counsel instructed by responsible firms of solicitors tells me that various steps necessary to progress the claims of the non-ASD/IBD claimants cannot be completed before the end of November - especially when it is just as much in the non-ASD/IBD claimants' interests as the defendants for the claims to be brought to trial as soon as is possible. As it is, I have no reason to doubt the time which Mr Oppenheim and those who instruct him think it will take to complete these steps. The first two could be completed within a matter of weeks, but the last could well take some time.

35.I see no reason why the defendants' solicitors cannot be provided with the medical records of the non-ASD/IBD claimants reasonably soon, so that the defendants can themselves make the judgments required by step (ii) and commission such experts' reports as is envisaged by step (iii). The time I have in mind is 56 days from the compliance date. But I do not think that the non-ASD/IBD claimants should be required to do anything else in preparation for a case management conference in January 2006. Their solicitors should then file and serve upon the relevant defendant's solicitors a witness statement which sets out
(a) what steps have been taken to investigate whether all or any of the non-ASD/IBD claimants should proceed with their claims, and
(b) what their proposals are for the continuation of the litigation.
I have in mind 2 December 2005 for that statement to be filed and served. (b) is sufficient to deal with the defendants' contention that the non-ASD/IBD claimants should provide a substantive response to question 14 of the Schedule 4 questionnaires. I do not think that the non-ASD/IBD claimants should be required to provide the defendants, prior to the service of their particulars of claim, with medical reports on the claimants' current medical condition, let alone on the basis on which it is said that the vaccines caused the claimants' disorders, or on the mechanism by which they did so.

36.Having said all that, it is important that matters are not allowed to drift. For that reason, I think that there should be another case management conference before the one in January 2006. That will be early in October 2005, on a date to be fixed within two weeks of the handing down of this judgment. In relation to the non-ASD/IBD claimants, I will wish to be provided then with an up-to-date statement of how the investigations into their claims are continuing. In relation to the ASD/IBD claimants who are continuing with their claims, I wish to be told precisely the current status of their claim for judicial review of the refusal to restore their public funding. (The only order which I make in their case, apart from that in para. 30 above, is that they must provide the relevant defendant's solicitors with copies of all their medical records within 28 days after the compliance date). And I can make such orders as may still be needed to bring finality to the claims of the claimants who are not proceeding with their claims.

37.I leave it to the parties' solicitors to draft the orders which I make in respect of the continuers. They should follow, as far as possible, the structure and language of the rest of the order. But paras. 20, 21(a) and 22 of the draft directions proposed by all the defendants, and paras. 1, 4.1, 4.2, 6, 7 and 8 of the draft directions proposed by the non-ASD/IBD claimants can serve as useful working drafts.
Miscellaneous matters

38.There are a number of miscellaneous matters I must deal with. First, I want any claimant or litigation friend who was not present at the hearing to be able to apply for any of the orders which I am making to be set aside. An appropriate order to make is that set out in para. 18 of the draft specific directions proposed by Merck, deleting the words "was absent from the hearing, and", adding the words "or any notices of discontinuance or for permission to withdraw them" after the words "any of these orders", and substituting the words "the compliance date" for the words "4.00 pm on 15 April 2005". Secondly, there will have to be a number of schedules identifying which particular claimants each part of the order applies to. Care should be taken to ensure that the schedules incorporate the appropriate claimants. Thirdly, I must deal with the costs of the current case management conference, and the costs of the previous case management conference which were reserved. The costs of the non-ASD/IBD claimants of the current case management conference will be in the case, which is what all parties suggested, but the costs of the other claimants of the current case management conference and the costs which were reserved from the previous case management conference will be reserved to the next case management conference.

39.Finally, I wish to record once again my personal thanks to Mr Ullstein and Mr Follis for representing the interests of those claimants who do not wish to proceed with their claims on a non-remunerated basis. My thanks are also due to Mr Christopher Johnston and Mr David Body of Irwin Mitchell who represented the interests of a group of 5 claimants, who received a particular strain of the vaccine, and who wish to have their legal certificates transferred to Irwin Mitchell. They also came to court on a non-remunerated basis.

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