Navigating the litigation minefield: Bailey and others v GlaxoSmithKline 2019

The phrase ‘Your name’s not down, you’re not coming in’ is unlikely to pass a judge’s lips, but is one that neatly sums up your position if you attempt to use it at trial legal arguments. The same applies if you try to raise points that you haven’t set out in your statement of case. In a recent case, there was an attempt to do just that in a long running claim which alleged that a defective drug was decisively stopped in its tracks by the trial judge in Bailey and others v GlaxoSmithKline 2019.

Statements of case (particulars of claim, defence etc) are the foundations upon which a legal claim are built, with each side setting out the facts and matters they rely on in support of their position. Disclosure of documents, witness and expert evidence all flow from those statements of case. It’s procedurally unjust for one side to try to slip in something at trial that the other side has not had an opportunity to respond to during the course of preparation for trial.

As a case develops, there may be other issues that come to light which need to be brought into the statements of case. Although amendments to statements of case are possible, judicial agreement may be needed and you can generally expect to pay your opponents’ legal costs for dealing with your amendments. Furthermore, the later a request for amendment, the less likely the amendment will be allowed.

An approach of ‘throwing in the kitchen sink’ in case you need it later is likely to lead to judicial criticism, and could result in you (even if you ultimately win) adding to your own legal costs and having to pay the other side their costs of dealing with unnecessary allegations. The case further demonstrates the careful path always to be taken through the litigation minefield.