The legal action over brain injuries in rugby has been brought back from the brink of collapse after the high court ruled to give a reprieve to hundreds of claimants who had been struck out from the case.
More than 500 claimants had breached a court order by failing to disclose necessary neurological testing information to the defendants. The players’ representative, Susan Rodway KC, had said they were “staring into the precipice” at the most recent hearing, but the judge, Senior Master Cook, has now decided, with “some hesitation”, to allow all the affected claims to continue.
The decision comes after the claimants terminated their dealings with the legal firm Rylands Garth and the solicitor Richard Boardman, who was the organising force behind the litigation and who had been representing them for the last five years. The claimants held a committee meeting on 17 July and unanimously decided that Rylands Garth was not competent to continue given its handling of the case so far. The firm KP Law, which has extensive experience at managing group litigation claims, has now taken over.
The former Wales international Alix Popham provided evidence on behalf of the claimants. He said: “I would like to make clear to the court that neither the committee nor the underlying claimants have been properly kept abreast of the deficiencies in our representation.” Popham said the claimants had previously received “numerous assurances from Rylands Garth/Mr Boardman as to the progress of the case” and only recently became aware of the risk it might collapse.
A spokesperson for World Rugby said it and the other defendants in rugby union, the Rugby Football Union and the Welsh Rugby Union, welcomed Cook’s judgment: “With new legal representation now in place for the players, we hope that the litigation can move forward in accordance with the court’s expectations and in the best interests of the players and the sport.”
So long as KP Law rectifies the gaps in disclosure, the case will proceed to the next stage in November, when the two sides will submit their shortlists of potential lead claimants.
A spokesperson for KP Law said: “We are pleased the court has allowed these important claims to proceed and we look forward to progressing this case. This is a significant step for the many claimants affected by this litigation, who deserve to have their experiences heard and their concerns properly addressed.
“Our priority is to support our clients with the care and sensitivity these issues demand, and this outcome reinforces our determination to hold the defendants to account.”
KP Law is a much larger firm than Ryland Garth, and has committed to putting in place a “heavily resourced team” to obtain and provide copies of outstanding documents before the November hearing. It will be a significant undertaking. Cook found that 377 of the rugby union claimants and 153 of the rugby league claimants had failed to provide the defendants with all the necessary documentation from their neurological testing. All of those 530 players were struck out, but Cook ultimately decided to grant them relief from sanction.
Cook had repeatedly said in court that he was mindful strike-outs would deny the players the opportunity for justice, but he considered that such a draconian move was warranted by Rylands Garth’s handling of the case. It was the change in legal representation that led him to reconsider.
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“The court can take comfort in the fact that the claimants are no longer to be represented by Rylands Garth,” he wrote. “Had Mr Boardman remained the solicitor conducting this litigation, I could not have had any confidence that future court orders would be complied with timeously or at all.”
Cook had little sympathy for the claimants’ arguments that the defendants had been attempting to slow the progress of the case by swamping Rylands Garth with an impossible workload.
“I have repeatedly said the obligation to disclose is upon the claimants,” Cook wrote. “The evidence presented on behalf of the defendants demonstrates that they have devoted time and resources to carefully scrutinising what they have been provided. They have cross-referenced the documents and noted where there are gaps or references to documents which must clearly exist and have not been provided. They have raised these issues promptly.
“On the other hand, Mr Boardman has repeatedly confirmed compliance with his obligations whilst failing to deal methodically and sensibly with the issues raised by the defendants.”