09.05.07
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Parents of children allegedly damaged by MMR are demanding
an investigation into an extraordinary family connection of the judge who
blocked their legal aid.
The FOIA Centre can reveal that the high court judge who made the devastating
ruling on legal aid in the group claim for damages has a brother who sits
on the board of a drugs company embroiled in the litigation.
One parent has asked the office of judicial complaints to examine the
issue. Wendy Stephen, a former psychiatric nurse of Stonehaven, near Aberdeen,
who wants legal aid restored for her 16-year-old daughter Katie’s damages
claim after the triple-vaccine caused her partial deafness, said: “This
is astonishing. But I do not have much faith in the system, and I do not know
whether the office of judicial complaints will look into this properly.”
The row centres on a crucial judgement in the case delivered by Mr
Justice Davis in 2004.
The group action, which began in 1998 with legal aid support,
peaked with 2,500 children seeking damages. Some lead cases allegedly linked
to autism and bowel disease were selected for trial that was due to start
in April 2004.
However, legal aid was withdrawn for most claim-ants in September
2003. A review upheld that withdrawal by the legal services commission.
A judicial review of the decision, seeking to have legal aid
restored, was heard at the high court by Justice Davis behind closed doors
in a three-day hearing in February 2004.
The judgement was also delivered in camera that same month. But
the judge issued a brief, public judgement saying that he had rejected the
judicial review application.
He began the public judgement by saying: “A group of parents
has commenced legal proceedings against various drug companies alleging that
brands of mumps, measles and rubella (MMR) and measles rubella (MR) vaccines
have caused damage to their children. Among the consequences alleged to have
been caused are autism spectrum disorder and inflammatory bowel disease.”
“Because much of the material put before me is confidential and
the subject of litigation privilege, it was necessary, as all counsel appearing
before me agreed, for the hearing to be held in private. For similar reasons,
the judgement which I have just delivered this afternoon necessarily has had
to be delivered in private.”
He described the review, which upheld the decision to withdraw legal
aid, as “proportionate; it was rational; it took into account the relevant
considerations; it was sufficiently reasoned; and there was no procedural
unfairness.”
“I well appreciate that the decision to withdraw legal aid will
have caused great dismay to the parents of the claimants.”
The judge’s ruling to dismiss the attempt to restore legal aid
left many unable to continue with their legal struggle, and the group dwindled,
with only 32 children thought to be remaining.
Meanwhile, a hearing to decide on procedural issues is due later this
month, and parents fear that more will be knocked out at this stage. Some
are still trying to have legal aid restored.
But parents are angry after discovering, three years after the crucial
judgement on legal aid, about an extraordinary family connection of the judge,
Sir Nigel Davis, 56, who sits in the Queen’s bench division and can
also hear cases, such as judicial reviews, in the administrative court of
the high court.
His brother, Sir Crispin Davis, 58, is non-execut-ive director
of GlaxoSmithKline (GSK). The MMR pharmaceutical defendants in the group litigation
include SmithKline Beecham and Smith Kline & French Laboratories, which
became part of the GSK group in 2000.
And Davis, who is also chief executive officer of Reed Elsevier, publisher
of The Lancet, took up his GSK post just seven months before his
younger brother delivered that critical judgement.
The judicial communications office said in a statement: “In 2003,
Mr Justice Davis’s brother was appointed as a non-executive director
of GlaxoSmithKline, a company which was formed as a result of a merger with
SmithKline Beecham. At the date of the hearing before Justice Davis, the possibility
of any conflict of interest arising from his brother’s position did
not occur to him.
“If he was wrong, any possible remedy must be sought from the
court of appeal.”
Parents say that they would need legal aid to be able to mount such
a challenge.
The disclosure of the brother’s link comes after minutes of meetings
disclosed under the freedom of information act revealed that government health
officials were alerted to serious health problems linked to a particular type
of MMR before it was used in Britain for four years.
Documents on MMR were obtained by the FOIA Centre acting on behalf
of one of the parents of a child in the group litigation against various pharmaceutical
companies.
Comment on this article
FOIA
Centre news archive: the MMR files
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