Grant v Roche Products (Ireland) Ltd & Others

• Jurisdiction: Ireland
• Judgment Date: 07 May 2008
• Date: 07 May 2008
• Docket Number: 248/05
• Court: Supreme Court

THE SUPREME COURT

Murray C.J.

Hardiman J.

Geoghegan J.

248/05

Between:

LIAM GRANT

Plaintiff/Respondent

and

ROCHE PRODUCTS (IRELAND) LIMITED

First defendant

and

F. HOFFMAN-LA ROCHE LIMITED

Second defendant

and

ROCHE HOLDINGS LIMITED

Third defendant

and

R.P. SCHERER LIMITED

Fourth defendant

and

ROCHE PRODUCTS LIMITED

Fifth defendant

and

THE IRISH MEDICINE BOARD

Sixth defendant

and

GILLIAN MURPHY

Seventh defendant

Abstract:

Practice and procedure - Restraint of proceedings - Inherent jurisdiction to strike out proceedings - Abuse of process - Constitution - Access to courts - Legal remedy for vindication of personal constitutional rights - Wrongful death - Action brought by dependants - Whether any tangible benefit to be obtained from pursuing action after offer of damages - Whether claim abuse of process - Whether striking out claim would breach plaintiff's constitutional rights - Civil Liability Act 1961 (No 41), s 48 - Constitution of Ireland 1937, Article 40.3.2.

Facts: Article 40.3.2 of the Constitution provides, inter alia, that "The State shall, in particular, by its laws,...in the case of injustice done, vindicate the life...of every citizen". The plaintiff sought damages, pursuant to s 48 of the Civil Liability Act 1961, from the defendant for the wrongful death of his son due to what he alleged was his pharmacologically induced suicide by taking the defendant's product. The defendant in an open letter offered to pay the plaintiff the full statutory value of the claim plus the costs of the action, to be taxed in default of agreement. The plaintiff refused that offer. The defendant applied to have the proceedings stayed, or struck out pursuant to the inherent jurisdiction of the court on the basis that there could be no further tangible benefit to the plaintiff by pursuing the action once the offer had been made and that the proceedings constituted, thereafter, an abuse of process. The High Court refused that application. The defendant appealed to the Supreme Court.

Held by the Supreme Court (Hardiman J: Murray and Geoghegan JJ concurring) in dismissing the appeal:

1. That the construction of part IV of the Civil Liability Act 1961 had to be approached in the context of the Constitution. The word "vindicate" used in Article 40.3.2 thereof had to be construed, if possible, in a manner which connoted an appropriate response to an "injustice". The process which was intended to be a vindication for an injustice required: (a) a judicial process which; (b) featured a determination of liability and ; (c) a pronouncement of liability.

2. The vindication of personal constitutional rights was as much a matter of civil, including tort, law as a matter for the criminal or regulatory law. That the statutory form of action brought by the plaintiff was the only legal step capable of providing vindication for an alleged injustice.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Hardiman delivered the 7th day of May, 2008.

2 In this action the plaintiff claims, on behalf of himself and of the other statutory defendants of Liam Grant Junior, deceased, and on behalf of the estate of the said Liam Grant Junior:

3 "Damages for mental distress, loss, damage and expense suffered by the plaintiffs and the statutory dependents by reason of the negligence, breach of duty and breach of statutory duty of the defendants and each of them their servants or agents".

4 The action is, therefore, what is often referred to as a

5 wrongful death claim. The first to fifth named defendants, inclusive, are referred to below as the "Roche defendants". The first-named defendant is a limited company having its registered office in Clonskeagh, Dublin, and was at all material times engaged in the promotion and distribution of a drug known as Roaccutane on its own behalf and on behalf of the second, third and fifth named defendants. The second-named defendant is a company incorporated in Switzerland which was at all material times the parent company of the first, third and fifth defendants. The third defendant is also a limited liability company incorporated in Switzerland. The fourth defendant is a limited liability company incorporated in England and is the manufacturer of the drug known as Roaccutane. The fifth-named defendant is also a limited liability company incorporated in England and was at all relevant times the Product License Authorisation holder of the drug known as Roaccutane.

6 The Roche defendants are the moving parties on the present application.

7 The sixth-named defendant is a statutory body corporate established under the Irish Medicines Board Act, 1995 and having the functions set out in that measure. The seventh-named defendant is a consultant dermatologist carrying on practice in a Dublin hospital and who was at all material times a person permitted to prescribe the drug Roaccutane. This right was limited to consultant dermatologists.

8 The factual background.

9 The factual background to this case, and therefore to this application, is a tragic one.

10 The plaintiff and his late wife had four children, three boys and a girl. The deceased Liam Grant Junior was at the time of his death a twenty year old second year student of Electrical Engineering in University College, Dublin. He had no history of depression and is said - without contradiction - to have been a pleasant outgoing relaxed and genial person who was happy in his life and his studies. There was no family history of depression. He did however suffer from acne and consulted his general practitioner about this. After several visits and reviews the general practitioner referred him to the seventh-named defendant, a consultant dermatologist. It was she who prescribed him Roaccutane, to be taken orally on a four month course. In the month following this prescription the deceased became withdrawn and isolated. On or about the 15th June, 1997, during the final week of the course of prescribed

11 medication, the deceased took his own life.

12 The plaintiff says that the general practitioner was totally surprised at this tragic development and stated that the deceased was the last person she would have expected to commit or contemplate suicide. She further expressed concerns to the plaintiff about the drug Roaccutane and referred to depression as a side effect of it. As a result of this the plaintiff has commenced an elaborate and expensive process of investigation into the drug and the scientific literature about it, as well as its regulatory history.

13 The plaintiff claims that depression, suicidal ideation and suicide itself are recognised side effects of the drug Roaccutane. He claims that Roaccutane is a defective product when used for medical treatment in the manner intended by the Roche defendants and that they were negligent and in breach of duty in the various ways set out in the Statement of Claim. The plaintiff has himself researched the nature and history of the drug Roaccutane and has retained others to do so for him. He has over the years obtained a considerable volume of documentation. An example of this, chosen more or less at random, is a:

14 "Medical Officer's Review

15 NDA briefing psychiatric adverse effect".

16 This document is dated the 15th April, 1998, and refers to Roche Pharmaceuticals as the "sponsor" of the drug there described as "Accutane". The document commences with a summary which states:

17 "In May, 1997, we discussed with the sponsor our increasing concern regarding the seriousness of psychiatric adverse events being reported with Accutane use (see attached memorandum dated May, 1997, which includes initial consult from Pharmaco Vigilence). Special emphasis was placed on the pattern of the events and the cases with positive de-challenge and/or re-challenge. At the time of the Tele-conference most of the sponsor participants did not agree that the reports reflected effects of Accutane, instead they felt that the reports reflected underlying psychiatric disease in the population being treated. Nonetheless, the

18 sponsor agreed to investigate further and reply to our concerns in a timely manner."

19 It seems clear from the documentation assembled that, whatever the validity or lack of it attaching to the plaintiff's specific allegations against the defendants, there has been for a considerable time a volume of discussion in scientific and regulatory circles on the topic of adverse psychiatric events associated or allegedly associated with the drug in question in these proceedings, as well as alleged birth defects associated with its use by pregnant women.

20 The present motion.

21 The plaintiff's proceedings continued with the delivery of a statement of claim on the 6th July, 2000, followed by a long and detailed notice for particulars by the Roche defendants, replied to in September, 2001. On the 8th February, 2002, the Roche defendants delivered a defence which is a full denial of liability and of all the plaintiff's allegations. Specifically there is a denial that Roaccutane "caused or contributed to the risk of severe depression or psychiatric disorders or suicidal ideation or suicide as alleged to at all."

22 On the 18th October, 2004, the solicitors for the Roche defendants issued a notice of motion claiming:

23 "An order pursuant to the inherent jurisdiction of the Court staying the proceedings herein or, alternatively, restraining the continued prosecution of the proceedings on the grounds that, in light of the open offer made to the plaintiff by solicitors for the first, second, third, fourth and fifth named defendants by letter dated the 13th October, 2004, the relief sought by the plaintiff in the proceedings has been offered to him by these defendants and in those circumstances the continued prosecution of the proceedings would be an abuse of the...