Pelvic mesh product cases remitted to Court of Session due to ‘considerable public interest’

A judge allowed the actions to be remitted from the sheriff court after ruling that “cause had been shown” as there was “considerable public interest” in the outcome of the cases.

Lord Boyd of Duncansby (pictured) heard that the four pursuers, referred to as AB, AS, CK, and SH, sued NHS Ayrshire, Greater Glasgow and Clyde NHS Trust, Greater Glasgow Health Board and the private health care company BMI Healthcare, as well as product manufacturers Johnson & Johnson Medical Ltd, for sums ranging from £50,000 to £80,000.

The cases against Johnson & Johnson alleged a breach of their statutory duty in terms of the Consumer Protection Act 1987, while the cases against the three local health boards, BMI and a medical practitioner employed by the private health company averred breach of the duty to give warnings about the use of the pelvic mesh products.

In June 2016 Sheriff Katherine Mackie sitting in Edinburgh Sheriff Court, which has exclusive jurisdiction in actions of up to £100,000, pronounced interlocutors in the four cases requesting the Court of Session to allow the cases to be remitted to this court in terms of section 92(4) of the Court Reform (Scotland) Act 2014, which provides that a sheriff may make such a request if she considers that the importance or difficulty of the proceedings make it appropriate to do so.

Thereafter, under section 92(5), the Court of Session must consider whether or not cause has been shown to allow the proceedings to be remitted.

The provisions for remit in the 2014 Act, which arose out of the Gill report of the Scottish Civil Courts Review, were designed so that the power of remit should be exercised only in exceptional cases.

“It seems to be both logical and appropriate that the remit provisions should only be used exceptionally. Parliament has determined the exclusive jurisdiction of the Sheriff Court and that would be undermined if remits became common place, Lord Boyd said.

The court was told that there were currently around 350 cases in the Court of Session arising out of the use of pelvic mesh products, while counsel for the health boards explained that the NHS in Scotland had received intimation of 409 claims.

There was one case in Glasgow Sheriff Court which had been sisted, but all the others, apart from these four, had been raised in the Court of Session.

The court was also told that the issues surrounding the cases had been raised in the Petitions Committee of the Scottish Parliament, and that there were also numerous actions pending in other jurisdictions including England and Wales and the United States.

In September 2015 Lord Carloway, then the Lord Justice Clerk exercising the powers of the Lord President, issued a direction directing that proceedings arising from the use of vaginal tape and female pelvic mesh to treat stress urinary incontinence and pelvic organ prolapse should be dealt with in accordance with the direction.

Allowing the proceedings to be remitted, the judge noted that there was “significant public interest” in the outcome of the cases.

In a written opinion, Lord Boyd of Duncansby said: “There is a considerable volume of material to consider and a multiplicity of legal issues which I have outlined above. I am told that resolution of some of the cases may require development in areas of the law for which there is no authority.

“While defences have not yet been lodged in these cases one aspect of the defence on behalf of medical practitioners may be their reliance on the fact that the products were licensed for use in the UK. That may in turn raise issues of public confidence in the licensing system itself.”

He added: “In summary these four cases are clearly part of a much wider cohort of cases which have been raised in Scotland. Their conduct in this court is subject to a Practice Direction which is designed to ensure that the cases are dealt with in a consistent and efficient manner.

“There is considerable public interest in the wider issues which these cases raise. I am satisfied that cause has been shown for remit of these proceedings to this court.”