The landmark legal action over brain damage in rugby is on the brink of collapse as the managing judge weighs whether to strike out 95% of the first batch of 561 claimants on the grounds they have failed to comply with a court order to disclose all available documents relating to their neurological testing.
After two days of hearings at the Royal Courts of Justice, Senior Master Cook said he felt the case had entered “uncharted territory” because he was unable to find any legal precedent for what to do next, before retiring to make his judgment.
It’s unclear how long he will take. Cook said that, given that absence of precedent, he needed to operate in “a careful and considered manner”. The court is due to break for summer on Friday, 31 July.
The defendants, World Rugby, the Rugby Football Union, and the Welsh Rugby Union in one case, and Rugby Football League and British Amateur Rugby League Association in the other, all pressed to have these cases struck out on the grounds that there had been “wholesale and widespread non-compliance” with the court order.
Cook agreed with this at the high court on Thursday, but was unequivocal that it was the solicitor until this week in charge of the case, Richard Boardman of the firm Rylands Garth, who was at fault rather than the claimants themselves. “The only complaint in this case is against the way Mr Boardman has handled the material,” Cook said. “No claimant in this case can be said in any way shape or form to be responsible for the deficiencies in the way this case has been presented.”
Boardman has notified the court of his intention to “come off the record” in the case after the claimants unanimously agreed to terminate their dealings with Rylands Garth. They are in the process of appointing new solicitors, but until they have done so Boardman remains notionally in charge despite being absent from court for the last day-and-a-half of hearings. The firm Leigh Day has been consulting on the case since February, and is considering whether to take it on.
Cook said that he felt this change “raises more questions that it answers”. There are still second tranches of stayed cases in both league and union, which could conceivably proceed to trial even if this first tranche is struck out. But as the barrister representing the Rugby Football League, William Audland KC, said in court: “There may be no one that is prepared to pick up this mess.” Even if they were, it would likely necessitate more delays and expenses in a case that has been running for six years and has cost millions.
Despite that, Cook was clearly mindful of the severity of strikeouts, which would deny the claimants the opportunity for justice. He described the claimants as passengers in a vehicle being driven by somebody else. “The point is simply this: you have three buses full of passengers, all going to the same destination. The first bus, the driver takes them off the edge of a cliff, with the result they do not get to their destination. The other two buses get to the destination. Let’s say they are successful, buses two and three. What of those onboard bus one?”
Cook told the court the case had only reached this crisis point because Boardman had given misleading evidence about whether or not he had successfully complied with the court order. The defence have been provided with thousands of documents relating to the testing, and the claimants argue that these ought to be sufficient. But there remain significant gaps, despite Boardman’s insistence in court that there were not.
“Mr Boardman should have said he had complied as far as he was capable instead of making these bland statements that the order had been complied with to the letter,” said Cook. “But that’s the evidence he has chosen to put here, with not a bit of mea culpa.”
