Don't Go Changing Your Claim: High Court And Court Of Appeal Rule On Preliminary Issue Of The Scope Of The Claimant's Claims On Defect In The Seroxat Group Litigation

Introduction

On 8 November 2019, the Court of Appeal handed down a unanimous decision on an important preliminary issue in the case of Bailey and others v GlaxoSmithKline [2019] EWCA Civ 1924. The decision upholds the 9 May 2019 judgment of Lambert J in favour of the Defendant and is the latest episode in the long-running saga of the Seroxat group litigation - a dispute for which proceedings were first issued in 2007. As outlined below, the Court of Appeal held that the Claimants' case that Seroxat was defective had to remain limited in scope to the argument that Seroxat was "worst in class" regarding the drug's withdrawal symptoms. The Claimants were not permitted to extend the parameters of their case by asserting that Seroxat has no relative benefit over comparator drugs, as this assessment of Seroxat's risk-benefit profile had not been included in the Claimant's initial pleadings.

Background

The Seroxat litigation was originally brought by a group of claimants in 2007, who alleged that Seroxat, a prescription-only antidepressant and one of a class of Selective Serotonin Reuptake Inhibitors ("SSRIs") manufactured by the Defendant, was defective within the meaning of the UK Consumer Protection Act 1987 ("CPA").49 Among other things, the Claimants alleged that Seroxat was defective in that it had the capacity to cause adverse effects when discontinued, which prevented or made it more difficult for users to discontinue the drug as compared to other SSRIs.50

In 2008, the Defendant issued a Request for Further information to check whether it was part of the Claimants' case that the benefits of Seroxat as compared to other SSRIs were to be taken into account. The Claimants responded in the negative, noting that in the event potential benefits were determined to be of relevance, the Claimants would deny Seroxat had any greater effectiveness or substantial benefit compared to other SSRIs.51 The Defendant pleaded in response that the Claimants' approach to defect was flawed, as any proper comparison between medicines would have to include a comparison of the relative risk/benefit profiles of the medicines being compared both generally and the particular claimant in question. The Defendant also challenged the Claimants' case on the facts (i.e. disputing that Seroxat caused greater adverse effects on discontinuance).

The claim was effectively stayed from 2010 to 2015 due to funding issues experienced by the Claimants. Following this, in 2015...