1987-APPEAL

Davies v Eli Lilly & Co and others
Court of Appeal (Sir John Donaldson, Master of the Rolls, Lord Justice Ralph Gibson and Lord Justice Bingham).
22 January 1987.
A party to an action could appoint a person who was neither his legal adviser, nor a professional expert to Inspect the opposing party's documents on discovery provided that he could show that such a person's assistance was essential in the Interests of justice, and the opposing party was unable to satisfy the court that there would be a breach of the duty of confidentiality in respect of the documents to be so Inspected.
The Court of Appeal allowed an appeal by the plaintiff, Joy Rosalie Davies, against the decision of Mr Justice Hirst refusing to permit Mr Charles Medawar to inspect the documents disclosed. by the first to the fourth defendants, Eli Lilly & Co, Dista Products Lid, Lilly Industries Ltd, and' Lilly Research Centre Ltd, in an action for negligence brought by the plaintiff against these defendants and William lan Hamilton Shedden, and The Attorney General, on behalf of the Committed on Safety of Medicines, and the Department of Health and Social Security.
David Sullivan QC and Christopher Carling (instructed by Owen White, Feltham) for the Plaintiff; Michael Spencer (instructed by Davies Arnold and Cooper) for the first to the fifth defendants, Andrew Collins QC and Justin Fenwick (instructed by the Treasury Solicitor) for the Attorney General.
SIR JOHN DONALDSON MR said that more than 1,000 plaintiffs had brought individual actions claiming damages for personal injuries consequent upon their treatment with the drug Benoxaprofen, marketed in the United Kingdom under the name "Opren".
Manifestly, there would be some issues common to all those actions and it was in the interests of all concerned that some of the actions should be treated as test cases and that a particular judge should be appointed to assist the parties so to arrange this litigation that the minimum of delay and expense was involved. Hirst J had been so appointed and under his guidance certain "lead actions" had emerged. One such for interlocutory purposes was the claim by the plaintiff.

At an early stage two years ago, It appeared to the plaintiffs' solicitors, that the problem of assembling and organising the documentation and co-ordinating the expert advice and evidence would be uniquely difficult, because the subject-matter was highly technical, involving medical and scientific specialities of many different kinds and because the extent of the documentation would demand computerisation if particular documents were ever to be available as and when required. His Lordship said that it was thought the documents would number about 1.2 million.
In these circumstances the plaintiffs' solicitors considered that they needed the assistance of someone capable of (a) acting as a coordinator and interpreter in tlicir dealings with the medical experts, (b) undertaking research to identity relevant experts and to uncovcr supporting evidence in scientific publications, (c) analyse a mass of evidence given in similar proceedings in the United States and (d) computerise all this material, together with the material which would become available on discovery.
They found such a man - Mr Medawar. He had devoted his life to medical and scientific journalism and had acquired a sufficient knowledge of a wide range of medical and scientific specialities to understand experts and interpret them to the 1ayman. In addition he was familiar with computerisation. With the approval of the legal aid authorities, the plaintiffs' solicitors engaged, Mr Medawar and he had been assisting them since December 1984. By now he had a unique knowledge of the plaintiffs' case.
On 2 June 1986, a consent order was made for discovery, inspection to follow. On 1 July, the defendants enquired who would be conducting the inspection. The plaintiffs' list included the name of Mr Medawar. His Lordship said that the defendants then objected to Mr Medawar, having discovered that he was a medical journalist who had published material highly critical of the pharmaceutical industry in general and the Lilly defendants in particular.

The plaintiffs' right to discovery of all relevant documents was not in issue. This right was peculiar to the common law jurisdictions. It was a system designed to do real justice between opposing parties, but there had to be safeguards. The party required to give discovery was entitled to confidentiality so that the documents would only be disclosed for the purpose of the litigation and would not be disclosed to the world, unless given in evidence in open court.
Nor was it in issue that if the plaintiff needed someone of Mr Medawar's expertise to assist them, it was for them and not the defendants to choose who that person should be. What was in issue was (a) whether the plaintiffs had such a need at this stage and (b) whether the choice of Mr Medawar would deprive the defendants of essential protection from the improper use, or disclosure by them to the plaintiffs.
It was for the plaintiffs to satisfy the court of the need for a scientific co-ordinator with access to disclosed documents and for the defendants to satisfy the court that the choice of Mr Medawar was not one which they should be required to accept.
His Lordship then referred to the position of the Attorney General, on behalf of the Committee on Safety of Medicines and the DHSS, which supported the defendants' objection because the majority of the relevant documents in their possession emanated from the Lilly defendants.
The judge held that the plaintiffs had established a need for the services of a specialist co-ordinator and that although such a person might not be in the categories of permissible inspectors, such categories were not closed and he had jurisdiction to permit inspection by Mr Medawar.
His Lordship referred to the: judge's conclusion that in the exercise of his discretion the defendants had shown reasonable objection to Mr Medawar, and that he should not be permitted to inspect the documents.
In this court the Lilly defendants challenged the judge's implied conclusion that justice could not be done in this case if inspection were limited to solicitors and counsel in the usual way. His Lordship entirely agreed with the judge that in the

exceptional circumstances of this litigation, inspection by Mr Medawar was essential if justice were to be achieved, subject always to the need to provide proper protection for the defendants from any abuse of the process of the court.
The real issue was thus whether inspection by Mr Medawar would deprive the defendants of essential protection. The issue was therefore one of discretion, balancing the legitimate needs of the defendants against those of the plaintiffs.
As in all appeals against a discretionary decision, there was need for caution by the appellate court. However, with the benefit of additional in this case, his Lordship considered that the judge had inadvertently done injustice to the plaintiffs and to Mr Medawar. The new evidence showed that Mr Medawar's future usefulness would be non-existent if he were unable to have access to the documents disclosed on discovery. The evidence showed that Mr Medawar played a pivotal role in the preparation of the case.
In considering the risk to the defendants, His Lordship said that the defendants' fears that there would be a breach of confidence because Mr Medawar was an "investigative journalist", were unfounded. His Lordship doubted whether Mr Medawar was to be regarded as a journalist in any ordinary way. He was a writer on medical and scientific subjects with a specialist interest in the pharmaceutical industry. He might be an unwelcome critic, but there was no evidence that be was a fanatic or that he would breach the duty of confidentiality.
In the light of the new evidence his Lordship could not accept the judge's view that Mr Medawar presented a risk to the defendants. His Lordship would therefore allow the appeal and order the defendants to permit Mr Medawar to inspect their documents, subject to an undertaking by Mr Medawar that he would not for a specified period communicate without the leave of the court information relating to the drug concerned or to its marketing or licensing.

LORD JUSTICE RALPH GIBSON and LORD JUSTICE BINHGAM delivered concurring judgments.

Diana Procter, Barrister

	Contents page
	What's New?