Outer House grants permission for hernia mesh group proceedings

About this case:

• Citation:
  [2026] CSOH 48
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Haldane

Applicant Stuart McKenzie also sought authorisation as the representative party for 83 claimants who all underwent treatment for various types of hernia using mesh products manufactured by Covidien LP. Mr McKenzie had received treatment for a hernia using a polyester “ProGrip” product manufactured by the respondent in 2013.

The case was heard by Lady Haldane, with R Milligan KC and A Black, advocate, appearing for the applicant and A Smart KC and R Anderson, advocate, for the respondent.

Holistic approach required

In respect of Mr McKenzie’s appointment as representative party, senior counsel for the applicant submitted that the only two issues in dispute were the competence of the proposed party and their financial resources. On the latter point, it was significant that the cases were all personal injury cases and therefore covered by Qualified One-Way Cost Shifting, and on the former point the proper approach was that, where a proposed representative was represented by responsible counsel and reputable agents, not much more was required.

For the respondent it was submitted that there was an overarching issue in relation to commonality which was relevant to both applications, and it was not clear that Mr McKenzie could be an appropriate representative for those who had other types of product implanted. Further questions arose when the issue of prescription was considered, as he would have a common law claim at best due to undergoing surgery in 2013.

In her decision on Mr McKenzie’s appointment, Lady Haldane said: “So far as the appointment of a representative party is concerned, the authorities confirm that this question should not be approached in a rigid, tick box fashion, and that a holistic approach is required. Factors such as the proposed party being represented by responsible counsel and solicitors are important. The question of funding is also significant, however in the present case the respondent did not demur from the proposition that these are cases to which QOCS would apply and so concerns around that issue are less acute than they might be in other cases.”

She continued: “There is no suggestion or evidence put forward that he would not act responsibly upon advice tendered. He has no interest in proceedings other than his own personal interest, and it has not been suggested that he stands to benefit in any other way from acting as representative party. He has no connection to the defender. The respondent has raised concerns around time bar and prescription, and the fact that the proposed representative had a different product implanted compared to others in the group. The former issue is one that will have to be addressed but is not directly relevant to the question of suitability.”

Flexible management powers

On the issue of permission to bring proceedings, it was submitted for the applicant that, while all the products involved had different names and characteristics, it was not controversial that any mesh implanted in the body was capable of causing problems. The flexibility and broad case management powers available in the Court of Session using the group proceedings provisions were clearly more suitable than requiring the individual pursuers to raise separate actions in the Sheriff Court, which would be the appropriate forum having regard to the likely value of each case in isolation.

Opposing the grant of permission, the respondent referred to an expert report which advised that there was an infinite combination of the type of mesh chosen by the surgeon depending on the location and type of hernia involved. In contrast, mesh used to treat urinary incontinence or pelvic prolapse would be placed consistently in the same location, and the same point could be made in respect of the cases involving metal-on-metal hip implants. The lack of commonality taken together with the prescription and limitation issues in particular presented an insuperable hurdle to the suitability of the present cases for this procedure.

Considering the criticisms advanced by the respondent, Lady Haldane said: “The issues are not identical, that much is true. The group members had a variety of mesh products implanted to treat various types of hernia. The common factor is that all were manufactured by the respondent. However, the overarching issues are similar, or related to each other, that is to say whether the defender manufactured and/or promoted these products either negligently or when they were not as safe as persons generally were entitled to expect. That is a serious issue capable of being tried, although that is not to ignore significant issues of specification and relevancy that will no doubt give rise to challenge, if not addressed.”

She concluded: “There was no substantive challenge to the proposition that managing these cases in a group would not be a more efficient administration of justice than for them to be raised individually in the Sheriff Court. I can see no sound reason not to grant permission having regard to that particular criterion. Whilst the numbers in the group register are less than 100, and certainly far short of the numbers in some comparable group proceedings, there can be no doubt that attempting to pursue over 80 individual product liability cases, with the associated cost and complexity, giving rise to the possibility of conflicting decisions, depending where the cases are raised, is not commensurate with the efficient administration of justice.”

While Lady Haldane therefore granted permission to bring group proceedings, the case was put out by order to allow more focus to be brought to the orders sought at the present stage.