Outer House refuses permission for group claim based on defective hernia mesh products

About this case:

• Citation:
  [2025] CSOH 77
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Young

Applicant Michelle Donnelly sought to become the representative party for 17 named claimants in proceedings against Johnson & Johnson Medical Ltd, alleging that they were negligent in the design, development, manufacture, and sale of mesh products used in the treatment and repair of abdominal hernias. The defender contended that the claims were not suitably similar, and that many of them had individualised preliminary issues that required to be dealt with.

The application was heard by Lord Young in the Outer House of the Court of Session, with R Milligan KC appearing for the applicant and K McBrearty KC and E Campbell, advocate, appearing for the defender.

Generic evidence

The proceedings sought to encompass claims relating to five different mesh implant products manufactured by the defender, with the majority of the group having a “Proceed” product and one or two claimants having another one of four products fitted. It was contended that the defender had failed in its obligations under the Consumer Protection Act 1987 as these mesh products were defective in design and users were inadequately warned of the material risks associated with use of the products, and that liability arose at common law.

The risks and defects in the defender’s products were averred to be detailed in parts of a report by Vladimir Iakovlev, a pathologist, which was incorporated into the summons. The injuries, conditions and complications said to have been suffered following the use of the defender’s products included hernia recurrence, chronic pain, contraction of the mesh and erosion into organs, scarring, allergic reactions, rashes and the need for further surgeries and procedures.

Senior counsel for the applicant submitted that this application related to a number of claims sifted from several hundred, the essence of which was that mesh, while a valuable medical product, carried a number of risks. There would be a saving of time and expense if generic evidence for all the claims could be led once only, and the 1987 Act issue could be dealt with before matters of causation and loss would be dealt with on an individualised basis.

For the defender it was submitted that, while the claims in the application all related to defective products, it was not said in what respect they were defective or whether the different products had the same alleged defect. This uncertainty created difficulties in defining the group and the issues in any final order. Further, there were issues of prescription and limitation which would be fact-specific to each claimant and the majority of claims in the proposed group appeared to face this preliminary hurdle.

Underdeveloped proposal

In his decision, Lord Young noted that there were no issues with the applicant as a representative party, saying: “The test for appointment has been identified as a relatively low one. I accept senior counsel for the applicant’s observation that in these cases, claimants are not normally ‘queuing up’ to so act. There is nothing to suggest that the applicant will not be able to ask sensible and practical questions from the legal team. She will be able to properly represent the other claimants. No doubt, she will rely heavily on her legal team but that is no different from most complex litigations.”

He added: “I am satisfied that the applicant has demonstrated that, at this stage, these claimants have prima facie claims with real prospects of success. At this stage, the court’s ability to critically assess the merits of the claims is limited to the draft summons and the reports. The court does not assess the embryonic action by reference to the tests of relevancy or specification which would apply when the record closes. It is a low test which amounts to asking whether the claimants have raised serious issues to be tried.”

Considering whether the claims were suitably related as to form a group, Lord Young said: “All, or at least a significant number of the current claims, are likely to require further elaboration in relation to the alleged defects in the particular device; the mechanism of failure and injury suffered by the individual claimant; and a response to any prescription and/or limitation plea taken by the defender. Whatever route these proceedings ultimately take, it seems likely that individual claims will need more individualised articulation whether by formal pleadings or an equivalent process.”

He concluded: “While the group issues will almost inevitably be refined over the course of the group proceedings, the proceedings will run more efficiently if the issues are defined with as much detail as possible. I have a concern that if the claimants were to proceed with an underdeveloped proposal for group proceedings, there is a potential for inefficiency and wasted expense through the court’s early case management orders. The importance of defining the common issues is also important for other litigants.”

The court therefore refused permission to bring group proceedings, although noted that had it been minded to grant permission the applicant would have authorised as an appropriate representative party.