By Cathy Gordon, PA 28 January 2011
A move to discontinue legal action brought by families who blame an epilepsy drug for causing defects in their children suffered a delay today.
Claims by more than 150 families were expected to be formally discontinued at a hearing before a judge at the High Court in London.
But Mr Justice Eady was told that a “difficulty” had arisen which meant that the proceedings would have to be adjourned.
Lawyers representing the families had earlier announced they had been forced to abandon the trial of the action following the withdrawal of legal aid.
The Legal Services Commission (LSC) said in November it was no longer funding an action against the makers of sodium valproate, a drug used to prevent epileptic seizures.
Claimants allege that the drug, also known as Epilim, caused a range of birth defects, including spina bifida, damage to the heart, learning difficulties, cleft palate and deformities of the hands and feet.
They have been pursuing a legal action for damages against manufacturer sanofi-aventis, claiming there were inadequate warnings about possible harm in the 1990s.
The firm has denied the claims, saying it has always provided appropriate precautions and warnings on the risks associated with possible side-effects of the medicine.
The plan for today was for lawyers for the families to advise the judge that the case against the manufacturers must be discontinued because continuing without legal aid funding would place their clients at “too great a financial risk”.
But the proceedings were adjourned for clarification to be sought relating to the terms of a proposed final order in the case.
Mr Justice Eady heard that the defendant would be taking instructions from representatives in France relating to one part of the order – that concerning the circumstances in which it would seek to enforce costs at any time in the future.
The court heard that there may have to be further consultation with all of the claimants by their lawyers to explain the situation to them with regard to the costs implications – a process which could take three months.
A further hearing is now expected to take place at the High Court in May.
Announcing the move to discontinue recently, solicitors Irwin Mitchell said their clients were “devastated” that their case would never be heard in court after six years of preparation for trial.
Despite the fact that the legal action has had to be dropped, families have vowed to continue their campaign.
A Legal Services Commission spokesman said: “Following advice from counsel, the Legal Services Commission has withdrawn legal aid funding for the multi-party action claim against the makers of the drug Epilim.
“Before making the decision, LSC had to await the exchange of evidence and the provision of comprehensive opinions from counsel – this process was only completed by the solicitors in late October.
“The claimants then exercised their right to appeal to a panel of lawyers who are independent of the LSC. This panel upheld the decision to withdraw funding.
“We have great sympathy with those who claim to have had adverse effects in connection with this medication, but our funding decisions must always be based on solid legal grounds.”