The class action being brought by hundreds of former rugby union and league players over the devastating effects of repetitive head injuries has taken a significant step forward at the high court in London.
Four years after the Guardian first reported that a group of eight former union players, including the World Cup winner Steve Thompson, had been diagnosed with neurological problems which they claimed were caused by their playing careers, the presiding judge, senior master of the king’s bench division Jeremy Cook has set out a roadmap for the landmark case.
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This December, Cook expects to be able to issue directions for a trial which may commence within two years of that date.
Cook was clearly exasperated with the lack of progress. The group action has been slowed by interminable arguments about the disclosure of evidence and how the test cases should be selected. “When Moses led his people out of the wilderness, it took 40 years to get to the promised land,” Cook said. “We’re not going to spend that amount of time wandering around.”
There are currently 386 claimants from union and a further 177 from league, and around a dozen from each of these groups will be chosen to come to trial on behalf of the entire cohort. Players who played in both codes will be obliged to choose to be involved in one suit rather than both.
Cook duly refused the defendants argument that they should have the right to have the claimants examined by their own independent neurological experts before selecting test cases, saying that he could see “no reason” why it was necessary.
He also expressed his concerns about the chaotic disclosure of medical records by the claimants’ solicitors, Rylands Garth, which he compared to “throwing documents in the air and saying: ‘find them’”.
The legal teams on both sides will now begin the process of selecting 28 players each to form a pool of potential test cases before the next hearing in July. Those 56 players will be chosen to be representative of the seven different neurological conditions diagnosed among the claimants, as well the eras in which they played and the standards they reached during their careers. They will then be reduced to a total of 21 players ahead of the trial. The defence is expected to provide its generic defence in time for the second hearing in December.
The progress of the case could yet turn on whether Rylands Garth has fulfilled its obligation to share all available medical records with the defendants. Rylands Garth insists it has, but the defendants argue otherwise. If the defendants are correct, then any affected cases could be struck out.
Susan Rodway KC, acting for Rylands Garth, argued that the defendants had turned disclosure into “a sisyphean task in which we keep pushing this stone up the hill only to be met by a barrage of defendants who keep pushing it back down” in an attempt to draw out the case.
In a statement, Rylands Garth described it as “an excellent week in court for the claimants in both the rugby league and union cases” and criticised the “continuous efforts by the defendants to stall and delay their progress”.
World Rugby denied this in a statement on behalf of the defendants. “We welcome the progress made in the legal case today,” a spokesperson said. “It is in the interests of both rugby and the players involved, that this case is heard as soon as possible, and we will continue to make every effort to ensure that happens.
“We have consistently stated that we need full details of the claims being made against us and welcome the judge’s acknowledgment that we are justified in that position. We remain concerned by the claimants’ lawyer’s statement that ‘not all the players involved in the case have been tested’.”
Cook also stressed that it is incumbent upon the claimants to establish not just that the defendants were negligent in their handling of the players, but also to substantiate what the defendants could have done differently.
“It is the defendants’ view, and I have some sympathy with it, that the pleading failed to state what the defendants should have done to comply with its respective duty of care,” he said. “Claimants should be under no illusion that it is their duty to illuminate the steps the defendants should have taken, and which they failed to take.”
