Court of Appeal: Good case management – you can’t beat it!

Bailey & Ors v GlaxoSmithKline “The Seroxat Group Litigation” [08.11.19]

In Bailey & Ors v GlaxoSmithKline “The Seroxat Group Litigation” [08.11.19] the Court of Appeal decided that it was impermissible for the claimants to expand the scope of their pleaded case at trial, which was previously determined at both the case management stage and during the pre-trial review.


The case relates to damages sought for personal injury arising from the use of a prescription-only antidepressant, which is alleged to be defective under Section 3 of the Consumer Protection Act 1987 (CPA 1987). The claimants allege that the drug is “worst in class” for discontinuation symptoms when compared with other antidepressants in the comparator class. The claimants’ case, as pleaded, was limited to this narrow comparator argument. In the build-up to trial, the claimants sought to widen the comparator argument by expanding their case to cover the risks and benefits of the drug and its comparators more generally.

In 2017 the case management judge, Foskett J, decided that the claimants’ pleaded case was limited to the narrow comparator argument and that it was too late to expand the case. In 2019 during the pre-trial stage, Lambert J re-affirmed this decision.

At trial the claimants again attempted to advance the wider comparator argument. The trial judge held that they were not entitled to do so because this was not an issue at trial. The claimants appealed the decision.

Court of Appeal decision

The Court of Appeal unanimously dismissed the appeal, holding that, against the background of unappealed prior rulings, it was impermissible for the claimants to seek to expand the scope of their case at the start of trial. The claimants’ case was conclusively defined at the case management stage, which the claimants could have appealed but chose not to do so.

Given the case had been managed to trial on the basis of the narrow comparator argument, it would be unfair to the defendant and undermine good case management to expand the case parameters previously set by the Court.


The CPA 1987 stipulates, in accordance with the EU Product Liability Directive, that ‘all the circumstances’ shall be taken into account when considering whether a product is ‘defective’. In Wilkes v DePuy International Limited (2016) Hickinbottom J held that ‘all the circumstances’ included a risk/benefit analysis. Claimants who restrict their assertions of defect to narrow aspects of a product’s safety performance, without regard to all the circumstances, risk failing to discharge the burden of proof.

The Court of Appeal affirms the importance of decisions and statements made at case management conferences about the shape a case will take and the issues to be addressed in evidence, including the scope of expert evidence. Attempts to re-shape a party’s case by amending pleadings have always been subject to the court’s discretion. Seeking to re-open issues that have been determined at case management stage, regarding the effect of existing pleadings, is not permissible, save by appealing the case management decision.

Related item: European Commission Evaluation Report: EU Product Liability Directive remains an adequate tool