Mr Justice Davis: an Official Complaint by John Stone
May 16, 2007
I write to complain about Mr Justice Davis hearing the application from MMR litigants asking to have their legal aid restored in February 2004.
Sir Nigel does not deny knowing of the [Glaxo SmithKline] conflict, so presumably he must have known about another potential conflict in that his brother had for much longer, and more prominently been CEO of Reed Elsevier, publishers of the Lancet. This was particularly sensitive during the days immediately preceding the hearing, and while it was going on, as the MMR controversy and the Lancet's repudiation of Andrew Wakefield had been dominating the national news, with attacks on Wakefield's integrity by the Chief Medical Officer and the Prime Minister. As Wakefield was the principal prosecution expert in the MMR litigation, and it was Wakefield's science that Mr Justice Davis was trying, it is surprising he did not notice a problem.
Mr Justice Davis states through his spokesman that "At the date of the hearing the possibility of any conflict of interest arising from his brother's position did not occur to him". It is most troubling that someone of Mr Justice Davis's intellectual competence and training could think himself above interest, or failed to consider what the plaintiffs or the public might have thought if this relationship had been known, particularly as "conflict of interest" was at the centre of Wakefield controversy which was then raging. But he chose even more controversially not to make it known and to go ahead with the case.
It is interesting to note that in theory the thing he most compromised was the defence case. We do not presently know whether they will be making a complaint against Mr Justice Davis and, of course, their internal affairs are beyond our speculation. But the plaintiffs and the public will be left with impression that they may very well have known and sat on their hands when Mr Justice Davis heard the case. And, indeed, the practical effect is that years later it will be very hard to restore the case in a way which could be considered fair and satisfactory to the plaintiffs. These proceedings are very hard things for ordinary citizens and families to endure, and very easy for multi-national companies, even disregarding the discrepancy in resources. The plaintiffs who were part of a class action are now scattered to the four winds.
This comes back to the very old-fashioned idea of justice being seen to be done. Irrevocably, it is very hard to see how this could ever now happen in this case except in a piecemeal way. The issue of whether ordinary citizens have real rights or protection anymore against the powerful also arises. The Legal Services Commission is now widely viewed as a politicised body. I believe that Mr Justice Davis made a grave error and if the Office for Judicial Complaints fails to take this view the consequences will be immeasurable for the reputation of British justice.
I write not as someone who was party to this litigation but as an autism parent who fears for the future of medical science in the hands of commercial forces, the future of justice and the protection of the public interest, and above all the future of our families in the face of indifferent or hostile government. It was also I who discovered this unfortunate matter.
The Office for Judicial
Complaints website is:
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The reference for the case is:
In the High Court of Justice
Queen's Bench Division