The High Court has refused an application by five Roche-related defendants to halt a father’s claim alleging that the acne drug Roaccutane contributed to his son’s death by suicide.
In a judgment delivered on 27 May 2005, Finnegan P. held that even if the defendants tendered or paid into court a sum equal to or greater than the maximum damages the plaintiff could recover, the court had no jurisdiction to stay or strike out his claim on that basis.
The plaintiff, Liam Grant, brought the action under Part IV of the Civil Liability Act 1961. The judgment says he is the father of Liam Grant Junior. The claim alleges that the son became depressed and suicidal after being prescribed Roaccutane and died on 15 June 1997. It alleges negligence, breach of duty and breach of statutory duty. The defendants delivered defences denying liability. These are allegations; the judgment did not determine whether the drug caused the death or whether any defendant was liable.
The first five defendants had made an open offer by letter in October 2004, which they said was enough to satisfy the claim. The judge was not satisfied that the amount was certainly sufficient to prevent the plaintiff from recovering more. For the application before him, however, he agreed to treat the offer as a tender, effectively considering the matter as if money had been lodged in court.
The defendants sought a stay or an order restraining the continued prosecution of the case, arguing that proceeding after the offer would be an abuse of the court’s process. The judge noted the scale of the litigation: discovery could involve between four and five million documents, potentially rising to nine million if the plaintiff succeeded in an appeal concerning discovery, and the trial was estimated to last more than three months.
The plaintiff’s affidavit said he wanted the issue of liability decided and did not regard an offer made without admission of liability as resolving that issue. He also claimed €696,193 in special damages for investigating and gathering scientific information about Roaccutane. The judgment noted uncertainty over whether some of those expenses were recoverable as damages or costs, a matter that could be addressed separately.
The court distinguished the two issues in a fatal-injury claim under the Act: whether a defendant committed a wrongful act and the assessment of damages. The judge concluded that seeking a determination of liability was a proper object of the proceedings. He refused the application by the first to fifth defendants. He stated that the ordinary costs rules provide the procedural penalty for a plaintiff who rejects a sufficient payment or tender; the court could not use a costs-based assessment to end the claim.