MMR: Keith and smiles?  (Private Eye 6 Aug 2004)

THE high court judge conducting the multi-million pound MMR lawsuit has criticised the legal service commission (LSC) for the way it suddenly withdrew legal aid funding for the children at the centre of case. It was "hardly an advertisement for access to justice", Mr Justice Keith said last week.

The removal of funds left the parents high and dry, without any proper legal advice about the consequences of continuing or abandoning their five-year-old claims against the three defendant drug companies.

About 15 parents, all with severely disabled children, turned up to represent themselves at a two-day hearing last week — less than the combined ranks of QCs, junior counsel and solicitors representing the drug companies.

It emerged that they were damned if they did continue and damned if they didn't. If they battled on without legal aid, they risked losing their homes in costs to the drug companies should the case ultimately fail. But if they abandoned the struggle, they not only forfeited the chance to appeal the withdrawal of legal aid, they could also be liable for the hefty costs bill clocked up since their certificates were revoked in June.

Worse, from their point of view, they may face insurmountable legal barriers to ever resurrecting their claims, should a new piece of scientific evidence come to light or public funding be restored.

Mr Justice Keith was very concerned that none of this was ever properly explained to the families when around 600 agreed to discontinue their legal actions — most in order to take advantage of a "costs amnesty" offered them by the drugs companies, Smithkline, Merck and Aventis Pasteur. What was clear from several in court who had discontinued was that they had done so reluctantly only because of the costs threat and believing they would be able to come back to court at a later stage, should science or funding change.

The result of last week's hearing is a compromise which at least buys the families a little time, until mid October, to appeal the legal aid ruling if they wish and to reconsider their decisions over continuing or dropping out of the litigation.

Mr Justice Keith said that although it was not his job to question the decision of the commission to withdraw funding, everyone's task would have been easier if it had at least made some provision to help parents reach an informed decision. "No one could fail to have enormous sympathy for the parents, who had spoken eloquently and with great feeling of the tragedies which befell them when their children became ill," he said.

The trouble is that the families do not want sympathy. They want their cases examined publicly and independently — either by a court or an inquiry. They complain that the legal service commission has "played judge and jury".

Further new science is emerging all the time, which may ultimately answer the question and either clear or condemn the triple vaccine. For example, three groups of scientists, two in the US and one in Switzerland, are expected to report later this year on their attempts to replicate the Wakefield findings of vaccine strain measles virus in the diseased bowels of the autistic children. It would seem a huge injustice to these families to rule their cases out prematurely - but that must now be a possibility.