The High Court has thrown out a professional negligence claim against a litigation firm after concluding that the evidence relied upon would never have stood up to scrutiny.
The claimant in Coote v Ullstein brought proceedings against Augustus Ullstein QC and London firm Hodge Jones and Allen after missing the chance to bring a potential claim relating to the MMR vaccine against drug manufacturer SmithKline Beecham (SKB).
Sitting in Leeds, His Honour Judge Gosnell approved applications for summary judgment from both defendants, effectively stopping the claim from proceeding any further.
The judge stressed this was not a ‘trial within a trial’ but said the quality of the evidence Coote would have relied on was not enough to give her any prospect of success – especially compared with the conflicting evidence SKB would have put before a court.
Gosnell said: ‘On an objective assessment of the expert evidence the claimant had no real prospect of success against SKB… she therefore has no real prospects of success in this litigation because the loss of a chance on my assessment is less than 10% by some distance.’
The court heard that proceedings were issued last year against Ullstein and HJA in relation to allegations of harm suffered by Rachael Coote, who received the MMR vaccine at the age of 18 months in 1989. She was diagnosed with epilepsy and developmental regression the following year.
The Coote claim was part of group action seeking to make claims against the manufacturers of the vaccine in the late 1990s. Most claimants were dealt a fatal blow when research linking the MMR with autism was discredited, but the Coote claim survived and eventually had legal aid re-instated.
It was finally discontinued in 2008 over an issue with limitation, and Coote subsequently claimed for damages against her lawyers to compensate for the value of claim she would have pursued against SKB if properly advised.
The claimant relied on the expert medical evidence of Dr Marcel Kinsbourne, who said that the MMR vaccine was a biologically plausible cause of seizures. Lawyers for the claimant urged the court not to engage in a ‘mini-trial’ and suggested further supporting evidence might emerge later.
Gosnell said some analysis of the parties’ respective evidence was required, and he stated that the Kinsbourne findings ignored various other papers and research related to MMR.
The judge said the chances of a court in 2009 accepting the Kinsbourne evidence were ‘nil or virtually nil’ and the doctor ‘made a number of conclusions which are logically unsupportable’, cherry-picking data which suited his opinion while discarding conflicting evidence.
Gosnell added that, on the basis of the evidence, the Legal Services Commission would have withdrawn legal aid funding and the claimant would have been compelled to discontinue the claim.
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