The High Court has refused applications to expand or withdraw an alternative dispute resolution (ADR) scheme for DePuy hip claims, while leaving open the possibility of revisiting the scheme if its slow progress continues for reasons attributable to the scheme or DePuy’s interpretation of it.
In a judgment delivered on 5 May 2017, Mr Justice Cross dismissed an application to admit claims involving unrevised hips to the scheme. He said that, without DePuy’s agreement, extending the process would add another layer of litigation because DePuy would reject the evaluators’ awards. The judge noted that the scheme had been created for cases in which the implant was fitted in Ireland and revision surgery took place in Ireland between 180 days and ten years after the operation.
The court also refused a request to increase DePuy’s agreed interim payment for costs from €25,000 to €75,000 after an evaluation was accepted. The judge said he was not in a position to assess the total costs of an evaluation and was not disposed to alter the amount DePuy had agreed to pay. The applications brought by Peter McDonald & Company Solicitors were dismissed.
Malcomson Law Solicitors sought to withdraw the court’s approval of the ADR scheme and remove restrictions on listing qualifying cases for trial without an application to the court. The judge refused that relief, finding that the scheme had not yet been shown to have failed or denied claimants access to court. He said qualifying plaintiffs who did not wish to use the scheme could apply for a trial date, but would need a good reason; costs could also be affected by the rules on failure to participate in ADR.
The judgment recorded that, by 20 April 2017, DePuy’s solicitors had received 153 preliminary forms. Of those, 97 had been endorsed, 16 claims had been deemed ineligible, and 14 evaluations had been completed. DePuy accepted all 14 evaluations; plaintiffs had accepted 10, rejected two, and had yet to decide on two. A further 11 cases had settled before evaluation. The judge said progress had been “lamentably slow”, but identified possible delay both in DePuy’s requests for records and in some solicitors’ failure to submit claims.
The court made no final decision on the scheme’s future. It said it could grant similar relief later if continued slow progress proved to be the responsibility of the scheme or DePuy’s interpretation of it. Cases outside the scheme may seek trial dates under the usual readiness criteria. The judge also said a claimant with both hips replaced, where only one had been revised, could seek a trial date covering both hips if DePuy insisted that only the revised hip proceed through ADR.