The High Court has rejected an application by claimants in the DePuy ASR hip implant litigation to change the court-approved alternative dispute resolution (ADR) scheme or leave it and proceed directly to trial.
In a judgment delivered on 20 December 2019, Mr Justice Cross refused requests for directions that DePuy could not raise causation issues or seek further medical records and examinations in the cases identified in the application. He also refused to delete clause 9 of the scheme, which pauses active steps in litigation after a claimant submits Form B, pending an evaluation or its lapse. The applicants were not granted permission to leave the scheme or trial dates.
The claimants, represented by Malcomson & Law, argued that DePuy was pursuing causation issues and seeking extensive medical information even after claimants had entered the process. They said they had withdrawn their consent and sought to resume court proceedings. One claimant named in the application had not had Form B endorsed and was therefore not yet in the scheme.
DePuy argued that the scheme permitted requests for records, medical examinations and expert reports where needed to assess claims. It also said the applicants’ cases had not progressed because their solicitor had declined to provide requested material, arrange examinations or engage with settlement discussions.
The judge found that the scheme allowed DePuy to raise causation and request further records, reports and examinations. He said clause 5.12’s expectation that expert reports would rarely be needed in uncomplicated revisions did not prevent DePuy from obtaining them. The court rejected the claimants’ requests for directions concerning both causation and additional medical material.
The court also rejected the challenge to clause 9. It held that the clause stays proceedings during the ADR process but does not remove access to the courts. Referring to an earlier decision in Flynn, the judge said claimants could apply individually for trial dates and explain why they should bypass the scheme. He found no sufficient reason in this application to grant that relief and attributed the delays in the applicants’ cases entirely or almost entirely to their solicitor’s actions or inaction.
The judgment said 645 cases had been reported as resolved by the scheme’s December 2019 review. The judge concluded that changing the process at this stage risked undermining it and rejected the application. He said individual applications for trial dates could still be considered on their merits, and that good reasons had led to such applications being allowed in other cases.