Opren -- Problems, Solutions, and More Problems

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Guy Dehn
Opren -- Problems, Solutions, and More
Problems
ABSTRACT. This UK paper on multiparty litigation looks at the Opren case. This
concerned an anti-arthritic drug licensed in the UK between 1980 and 1982. While
a number of drug users died, the most common adverse reaction was photosensitivity.
The main legal action involved almost 1,500 plaintiffs and seven defendants.
In the early summer of 1987 a court ruling on the funding of the action meant that
500 of the plaintiffs might have to withdraw. With the help of a multimillionaire and
a media campaign, the parties reached a controversial settlement at the end of 1987.
This paper focuses on the plaintiffs' case, the way the litigation proceeded through
the courts and the nature of the settlement. It goes on to assess the problems the
case highlighted in court procedures, legal aid and liability for defective drugs.
This paper looks at the Opren case and goes on to try to draw
lessons about the way that group actions can be handled in the
English courts, how they should be financed and their application to
drug disasters. The issues in group claims are not simply a blown-up
version of the access to justice issue for they throw up peculiar
dilemmas of their own as this paper shows. However group claims
inevitably force the interested observer back to basic principles --
what is the role of the courts, what is the role of the state as against
that of the individual, what is the object of the tort system.
The paper gives a simplistic overview of the Opren case and
discusses some of the developments it has pointed to. Any reader
interested in the implications of class actions and in the questions
they raise about basic principles should read Agent Orange on Trial
(Schuck, 1987) which details the six year US class action against the
manufacturers of the defoliant used in the Vietnam war. In spite of
the lessons that such a detailed study can bring home, no such study
is likely to emerge from any UK group case. This is partly because
the UK is not as open a society as the US is. There is no freedom of
information law in the UK. It is partly because the rules of discovery
and on interrogatories in US litigation have fewer restrictions on
what information litigants can obtain from one another than the rules
in the UK and Europe. And it is partly because the terms of any
settlement in a UK group claim are likely to be confidential, as they
were in the Opren case.
Journal of Consumer Policy 12: 397--414, 1989.
© 1989 KluwerAcademic Publishers'. Printed in the Netherlands.