Class actions - no scrutiny of pharmaceutical companies by UK courts in the last 15 years

"There has been no scrutiny of pharmaceutical companies by UK courts in the last 15 years," said Beth Reay, one of the lawyers at Irwin Mitchell representing the families. "If you look at group actions that have been brought, they have come to an end not because the judge has said they lack merit, but because of funding constraints."





http://www.guardian.co.uk/law/2011/jan/28/legal-aid-withdrawn-birth-defects



Families devastated after legal aid withdrawn for birth defects caseParents say epilepsy drugs containing a controversial anti-convulsant are to blame for disabilities






Share34 Afua Hirsch, legal affairs correspondent guardian.co.uk, Friday 28 January 2011 19.57 GMT Article history

Karen Buck and her daughter Bridget, 12, outside the law courts in London. Campaigners believe hundreds of children suffered birth defects as a result of drugs such as Epilim. Photograph: Graham Turner for the Guardian



When Samantha Scott wanted to have a baby, she consulted her neurologist about whether it was safe. She has epilepsy and was concerned that her medication, Epilim, could be unsafe in pregnancy.



"The doctors said it was fine," said Scott, 31, from Cumbria. "In fact, they upped my dose."



But Scott's daughter Faith was born with an extra digit, a cleft palate, a hole in the heart, and no muscle tone. Now aged seven, Faith has a mental age of two and weighs only two stone (13kg). She has spent most of her life so far in hospital.



Faith is one of hundreds of children campaigners believe suffered birth defects as a result of drugs such as Epilim, which contain a controversial anti-convulsant called sodium valproate.



"We have 624 children on our books from these drugs and 351 are from mothers who were taking Epilim," said Janet Williams, secretary of OACS, the organisation for anti-convulsant syndromes. "That is nowhere near the figure for the total number of children out there who are actually affected."



Six years ago, Sheffield-based lawyers at the national law firm Irwin Mitchell began a legal action against Sanofi Aventis, the manufacturer of Epilim, on behalf of 164 children whose mothers say they suffered birth defects because the drug was taken during pregnancy.



The case was publicly funded by legal aid through the Legal Services Commission, and the lawyers say they have evidence proving Sanofi is responsible for the injuries, and is liable to pay compensation.



But in November, six weeks before the trial was due to start, the LSC announced it was withdrawing funding. Today, the families attended the Law Courts in London to hear the LSC confirm its intention before Mr Justice Eady, although formal termination of the case was adjourned until May.



"Our clients are understandably devastated that their case will never be heard in court after six years of preparation for trial," said David Body, a partner at Irwin Mitchell who was representing the families. "This is exactly the kind of wide public interest case the LSC should be funding … now it will never come to court."



In a statement defending its decision, the LSC said that it had "great sympathy" with the families, but that its legal experts had advised against backing the case any further. "We have great sympathy with those who claim to have had adverse effects in connection with this medication, but our funding decisions must always be based on solid legal grounds."



Legal aid funding, already only available in a small number of personal injury cases, could be removed altogether under proposals currently being considered.



But claimants say the growing impossibility of funding cases such as the Epilim action is leaving pharmaceutical companies increasingly unaccountable.



Sanofi denies all liability for the birth defects that the families say are caused by Epilim, but in a similar class action brought against one of its affiliate companies in the US, it has settled, leading to calls for a review of UK law. More than 70 MPs have signed an early day motion about the case



"Four major drug companies have gone through the litigation and never gone to court," said Janet Stock-Pollard, who has two children that suffered birth defects after she took Epilim during her pregnancies. "The law appears to protect the drug company and not the consumer."



Emma Friedmann, whose son Andy is 12 years old with a mental age of three and is one of the claimants in the UK case, says that the lack of legal aid funding denies vulnerable people access to justice.



"Andy has been damaged for life, and he's not allowed his claim to be heard in court," she said. "Everyone who uses pharmaceutical products is less safe because of this. If you take a product and you or your dependants have a problem with it, you will not be successful in court."



"There has been no scrutiny of pharmaceutical companies by UK courts in the last 15 years," said Beth Reay, one of the lawyers at Irwin Mitchell representing the families. "If you look at group actions that have been brought, they have come to an end not because the judge has said they lack merit, but because of funding constraints."



"This case demonstrates most starkly where you have inequality between claimant and vastly well funded defendant," said Linda Lee, president of the Law Society. "Defendants are able to throw money at the case to stop it getting near court.""The settlement in the American case has been reached on a confidential basis, so we don't know exactly what was agreed," said Body. "But my guess is that because in the US it would have been tried in front of a jury, the pharmaceutical company there was more likely to settle."