The High Court has refused applications to dismiss two personal injury claims alleging harm from the drug Aulin/Nimesulide, despite finding that the plaintiffs’ delay in progressing the cases was inordinate and inexcusable.
Ms Justice Jackson ruled on 30 November 2023 that the defendants had not established that allowing the claims to proceed would cause them real and tangible injustice. She directed that the cases be listed for case management so both sides could address how they might proceed to hearing. She did not determine the underlying allegations of negligence or breach of duty.
The claims were brought by Catherine Patricia Allen and Breda Thomas against Helsinn Birex Pharmaceuticals Limited, Helsinn Birex Therapeutics Limited, Ergha Healthcare Limited, PCO Manufacturing Limited, Gowrie Limited trading as B & S Healthcare, Pinewood Laboratories Limited, the Irish Medicines Board and the Minister for Health and Children. The dismissal applications were made by the first three defendants in each case.
Both plaintiffs allege that the defendants acted negligently or breached a duty in connection with the drug’s manufacture, causing personal injuries. Allen’s case alleges she used the drug around 2003 and developed severe jaundice; the defendants’ submissions also referred to use in 1999 or 2000. Thomas alleges she used it around 2006 following a GP prescription and was hospitalised with jaundice and severe acute hepatitis in July that year. Both say they became aware of a potential claim around 2008. These remain allegations, not findings on liability.
The proceedings were issued in November 2009. The last formal steps identified by the court were replies to notices for particulars in 2013. Notices of intention to proceed and correspondence did not count as proceedings for the two-year period under the court rules. The defendants applied to dismiss the cases in March 2022. The judge found the ensuing delay was inordinate and inexcusable, rejecting reliance on efforts to progress a separate similar case first, an unreceived mediation invitation and settlement discussions. She also noted that warning letters had been sent in 2018 and 2021.
In assessing the balance of justice, the defendants relied on general concerns about prolonged litigation, evidence preservation, witness memories and former employees or witnesses outside the jurisdiction. The judge found no specific evidential difficulty tied to particular witnesses or evidence. Weighing that material against the impact of ending the plaintiffs’ claims, she concluded that the required real and tangible injustice had not been shown. The dismissal applications were refused. Costs were left for submissions at the case-management hearing, which the judgment proposed listing for 15 December 2023.