It has been nearly six years since the Guardian first reported that a group of former rugby union players were bringing legal action against the game’s governing authorities because they were enduring brain injuries which they believe were caused by their playing careers. There are now two separate cases, one in rugby league and one in rugby union, involving hundreds of former amateur and professional players.
The two cases are being heard together because they have so many overlapping issues. They are both still in the pre-trial phase, as the legal teams try to agree on exactly what the size, shape and structure of the trials ought to be when they finally start.
The process has been slowed by an interminable argument over whether or not the claimants’ legal team have complied fully with their obligation to disclose to the defence all available medical documents, which they agreed to do to spare the defendants the task of conducting their own separate testing on the players. This week, however, marks a key staging post, and the outcome of the hearings could determine the entire direction of the case.
Who is in court this week?
Rylands Garth is the firm representing the players in both codes, with the help of Leigh Day, who have been consulting on the case for six months. In rugby union, they are bringing action against World Rugby, the Rugby Football Union and the Welsh Rugby Union. In rugby league they are bringing action against the Rugby Football League. They represent 777 former union players, and 317 former league players. The two sides are supposed to select a small number of trial cases from among the hundreds and then agree on a smaller number of test cases who will then stand trial on behalf of the entire group.
Why are they in court?
The latest hearings are being held to try to resolve procedural issues. By far the most important issue is whether or not Rylands Garth has complied fully with a judge’s order to disclose to the defendants all the medical documents relating to all these players. If the judge decides they have not, any players whose documents have not been provided in full would be liable to be struck out from the case. This could conceivably mean that hundreds of the players involved are removed from the proceedings. Rylands Garth insists that it has complied with the order, and will seek relief against any ruling otherwise.
If there are strikeouts what does it mean for the players?
Any players who are found to have gaps in the documents provided on their behalf would be removed from the group involved in the trial. The rest may find that the credibility of Rylands Garth has been so badly undermined that continuing the action becomes impossible. This has been a source of distress for many of the players, many of whom have been diagnosed with neurodegenerative conditions, depression and anxiety.
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Why has it taken so long to get to trial?
The case is hugely complex. It involves hundreds of players spread across two codes, with a variety of conditions. There is no ready template to use for the case. Every little detail has to be argued and agreed in real time between three combative legal teams and neither side wants to cede ground to the other.
The defendants’ legal team would argue that Rylands Garth is under‑resourced for the size of the task it has taken on, and that it has failed to provide all the necessary medical documents referred to in its own arguments. Rylands Garth would argue that the defendants are trying to smother them with an impossible workload to stop the case coming to trial, and that many of the documents requested are either irrelevant or impossible to obtain.
Senior Master Cook, mindful of the claimants, is continually urging all sides to be more collaborative. It never seems to make much difference.
