by Margaret Williams
12th December 2009
Over twenty internationally renowned ME/CFS experts provided Statements in support of the Claimants’ case for the Judicial Review of the National Institute for Health and Clinical Excellence (NICE) Clinical Guideline on “CFS/ME” that was brought by ME/CFS sufferers Douglas Fraser and Kevin Short and heard before Mr Justice Simon in February 2009 in the High Court in London.
Many authors of the Statements expressed concern about the recommendation by NICE that the primary management intervention for ME/CFS should be Cognitive Behavioural Therapy and Graded Exercise Therapy (ie. CBT/GET, which are the subjects of the PACE Trial).
Regrettably, many of the experts’ Statements were not used.
At the eleventh hour, NICE strongly objected to much of the material that was to have been relied upon in Court, threatening to seek a substantial “wasted costs” Order against the Claimants’ solicitor and also potentially against the Claimants’ barrister personally, a significant threat which had a devastating effect on the case in that – without consulting with either of the Claimants or with any of the Claimants’ non-legal advisors – the Claimants’ lawyers decided to withdraw much of their evidence, to change the pleaded case, and to apologise to NICE and to the Court.
As is well-known, the Judicial Review failed on all counts. The Judge ruled that the Claimants’ evidence was unconvincing, unreliable, unfounded, untrue, and entirely without merit; that their contentions “cannot be sustained” and that their claims were “seen to be baseless”.
Mr Justice Simon subsequently granted NICE’s application for wasted costs and as a result, the Claimants’ solicitors’ firm (Messrs Leigh Day & Co) were obliged to pay NICE £50,000 in damages.
Unfortunately, the substantial evidence that was provided for the Claimants’ lawyers cannot enter the public domain (for example, evidence that addressed NICE’s lawyers’ Defence (Grounds / Arguments), Exhibits, or the 24 Witness Statements submitted in support of NICE).
Because their case had been changed without any consultation or agreement (a serious breach by the Claimants’ lawyers), the Claimants lodged a formal complaint against their own former solicitors and barrister; initially, both Leigh Day & Co and the Head of Chambers at One Crown Office Row robustly denied any failure to act in the clients’ best interests.
However, the Claimants pursued their complaint and submitted it to both the Legal Complaints Service (LCS) and the Bar Council Standards Board.
Whilst numerous heads of the Claimants’ complaint to the LCS about Messrs Leigh Day & Co were not able to be addressed by the LCS (because some of them involved a complaint about professional legal advice given or not given, about which the LCS advised that further independent legal advice should be sought with a view to pursuing a negligence claim) and some procedural complaints were dismissed, the substantial complaint (i.e. failure to obtain clients’ instructions before submitting a second Witness Statement) was upheld and the LCS ruled in favour of the Claimants.
The complaint to the Bar Council Standards Board about the barrister was referred by the Complaints Administration Department to the Complaints Commissioner, who requested an Opinion from a barrister; the barrister’s Opinion has now been received by the Complaints Commissioner but the ruling is still awaited.
Regarding the experts’ Statements, it is not known if Mr Justice Simon read even the ones that were initially provided for him.
They were certainly not mentioned in Court and there is no mention of them in the official transcripts or in the Judgment.
Extracts from some of the Statements for the High Court that supported the Claimants include the following: