Hodge Jones & Allen have flatly denied that they knowingly pursued ‘hopeless’ MMR vaccine litigation cases. Matthew McCafferty, who received the vaccine and three years later developed autism, told the Times yesterday that he was taking action ‘against his former legal team over a claim that he says had no chance of succeeding, was issued out of time and raised false hopes‘.
It was reported that he was suing Hodge Jones & Allen for their ‘unjust enrichment as officers of the court by litigating a hopeless claim funded by legal aid by which you profited’.
The Legal Services Commission pulled the plug on public funding for the ill fated legal action by more than 1,000 claimants against the makers of the measles, mumps and rubella (MMR) jab in 2003 at cost of £15m. The action collapsed following the controversial research by the doctor Andrew Wakefield on the link between autism and the MMR vaccine was discredited. Wakefield was later struck off for dishonesty and failing to act in the best interests of vulnerable child patients.
The MMR litigation joined a list of failed group actions, including the 2002 oral contraception pill litigation (fell apart following 44 days of legal argument) and the notorious benzodiazepine tranquilliser cases, which swallowed up £30m of taxpayers’ money without even seeing the inside of a courtroom. It was a result of this “bitter experience” (as the LSC put it) that led to the imposition of a restricted funding regime making with only £3m available a year for major multiparty actions and an annual affordability review.
‘The original MMR vaccine litigation was supposed to be worth billions in compensation, not mere millions, but it cost millions in legal aid. There was also a huge personal cost for the families involved — all the raised hopes and expectations, driven by the irresponsible media frenzy based on an unsubstantiated health scare and junk science. Not one penny in compensation was obtained for any child.’
Michael Shaw, Matthew McCafferty’s solicitor
According to the Times, McCafferty’s case was that Hodge Jones & Allen ‘negligently handled his claim and missed the time limit for filing a claim, which they say was ten years from the date of supply of the vaccine from the manufacturers’.
In the case of McCafferty, HJA said that they issued proceedings in 2002 ‘to protect his claim’ as there was a 10 year limitation period. ‘This is a normal precaution. It has now been argued that the case was issued out of time,’ the firm said. ‘However, whether or not it was issued out time is irrelevant as it was eventually decided that the case could not be sustained due to lack of causation evidence and funding was withdrawn. No new evidence has come to light since which supports any link between the MMR vaccine and autism. Therefore, Mr McCafferty has not lost the chance of winning compensation for the administration of the vaccine, because we now know that the claim could not succeed, a point which Mr McCafferty accepts.’
‘The suggestion that HJA took legal aid funds to investigate the case knowing it was hopeless in 1998 and 1999 is completely untrue. At the time, there was a strongly held belief that MMR caused autism in some children. A link between the vaccine and autism was strongly asserted by the families and Dr Wakefield and in view of the large number of cases and the seriousness of the condition, it was appropriate for investigations to be carried out. The Legal Aid Board agreed to fund these investigations on the basis of the information available. Whilst the ‘link’ has now been widely discredited, there is no reason for HJA to have considered at the time that the claim was without merit or hopeless and no evidence has been put forward to suggest that an alternative conclusion can be supported – ie that no reasonable solicitor would have considered proceedings a viable option in 2002.’
Hodge Jones & Allen
The firm also made the point that legal aid certificate was initially granted to another firm (Dawbarns of Kings Lynn). The solicitor in charge of the case moved to HJA in April 1998 and the certificate was transferred to HJA. He then moved on to Alexander Harris and the MMR certificate was again transferred in June 1999. ‘HJA had no further role in the generic investigations into the MMR litigation after this date. Eventually, the Legal Aid Board decided to withdraw funding in 2003. Convincing evidence on causation (the link between the MMR vaccine and the onset of autism) was not forthcoming and the cost risks were considered to be too high. Dr Andrew Wakefield was discredited and was eventually struck off by the GMC in 2010.’
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