Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 144
A346/10	OPINION OF LORD DRUMMOND YOUNG in the cause WILLIAM HAMILTON and Others Pursuers; against (FIRST) MERCK & CO INC and (SECOND) MERCK, SHARP & DOHME LTD Defenders: ________________

Pursuer: (Quantum Claims, Frank Lefevre and Lefevre Litigation):

Smith, QC; Lefevre Litigation

(Joseph C Blanks and the law firm of Joseph C Blanks, PC): Dunlop, QC; Guild, Solicitor Advocate; Simpson & Marwick

Defender: (Merck): Dean of Faculty; Milligan, QC; Burness

(Pfizer): Barne; Biggart Baillie

5 September 2012

[1] For a number of years the defenders manufactured and sold a drug known as Vioxx. On 30 September 2004 Vioxx was voluntarily withdrawn from sale by them after receipt of preliminary results of a study sponsored by the first defender, Merck & Co Inc, in which it was observed that there was an increased incidence of myocardial infarction in patients who had been in continuous daily use of the drug for 18 months or more by comparison with those who took a placebo. Thereafter proceedings were begun in courts in the United States, Canada and Australia by persons who claimed to have suffered injury as a result of taking Vioxx. In August 2005, a case brought against Merck & Co Inc in the Texas state courts in respect of the death of a 59 year old man who was said to have sustained an arrhythmia as a result of taking Vioxx came to trial, and a jury awarded $253.4 million. I am informed that the jury award was subsequently reduced to $26.1 million, and then was reversed in its entirety by the Texas Court of Appeals. Nevertheless, the original award was widely publicised, and steps were taken in Scotland and other jurisdictions to raise proceedings against the defenders.

[2] Such steps were taken in Scotland by Quantum Claims Compensation Specialists Ltd, a claims management company, who are parties to the minute and answers that gives rise to this opinion. In September 2005 Quantum Claims placed an advertisement in the Daily Record newspaper inviting members of the public who had taken Vioxx to contact them. In the advertisements Quantum Claims offered to assess claims free of charge and to pursue them on a no win no fee basis, possibly in courts in the United States. Members of the public responded to the advertisement, and in October 2005 Quantum Claims wrote to those who replied and indicated that they would undertake a vetting exercise to ascertain whether any particular claim would be likely to succeed. Quantum Claims invited potential claimants to sign a contract described as "Power of Attorney Contract" employing Joseph C Blanks, Trial Lawyer, P.O. Box 999, Doucette, Texas, and the law firm of Joseph C Blanks, PC, Trial Lawyers, of the same address, as their attorney to represent them in the prosecution of an action for personal injuries arising out of use of Vioxx. The contract authorized Joseph C Blanks and the law firm of Joseph C Blanks, PC, to appear on behalf of individual claimants to sue Merck on the claim, "to prosecute the same to judgment, and to negotiate settlement thereof", subject to approval by individual claimants of any such settlement. Under the Power of Attorney Contract the individuals agreed not to settle or offer to settle the claims without the consent of Joseph C Blanks or the law firm bearing his name.

[3] I was informed that Mr Blanks and Quantum Claims had entered into such arrangements on a considerable number of previous occasions. Lefevre Litigation, the firm of solicitors who have acted for the pursuers in the great majority of the claims made against Merck in respect of Vioxx, have also been involved in those arrangements; Mr Frank Lefevre, who was for many years the senior partner of Lefevre Litigation and their predecessors, is a director of Quantum Claims, and was responsible for setting up that company to provide a means of funding pursuers in personal injuries litigation. Mr Lefevre was also involved in the arrangements involving Mr Blanks. The relationship typically arose in cases where a pursuer had suffered injury in Scotland or the Scottish waters of the North Sea and the potential defender was an American company. In such a case the potential pursuer contacted Quantum Claims, who referred the case to Mr Blanks. Mr Blanks would then raise proceedings in the appropriate jurisdiction within the United States. Occasionally a United States citizen would require to litigate in Scotland in respect of a Scottish claim, and in such a case the relationship would involve Mr Blanks, Quantum Claims and Lefevre Litigation, who would act as solicitors in the Scottish proceedings.

[4] I was further informed that Quantum Claims and Lefevre Litigation had a long-standing relationship, with standard terms of written engagement. These are confidential, but they have been disclosed to the Law Society of Scotland, who have confirmed that the terms of engagement were quite proper in terms of the Law Society Rules, notably Rule 4B. Rule 4.2 of the Law Society Rules requires that, when a solicitor is instructed to undertake work on behalf of a client, certain information has to be provided in writing. Rule 4.3, however, provides that, where a client regularly instructs a solicitor in the same type of work, he need not be provided with the information set out in Rule 4.2 in relation to new instructions for the same type of work provided that he has previously been supplied with that information in relation to a previous instruction. I mention this point because it was submitted for Merck that Lefevre Litigation had not been properly instructed on behalf of any client owing to a failure to comply with the Law Society Rules. That contention is clearly incorrect, and a letter from Mr Bruce Ritchie, the Director, Professional Practice, of the Law Society was produced confirming that matter.

[5] As I have already stated, Quantum Claims referred potential claimants who came forward in Scotland to Mr Blanks. The intention was that he would raise proceedings against Merck on their behalf in an appropriate jurisdiction in the United States, and he duly did so. Proceedings were raised in the state courts of Texas, New Jersey and New York on various dates ranging from September 2006 to 2007, but nearly all of those proceedings were transferred to the appropriate Federal District Courts. It was hoped in this way to maximize the damages recovered, in view of jury awards that had been made in United States jurisdictions. Merck argued, however, that the principle of forum non conveniens applied, as the appropriate forum for the litigation was Scotland. That plea was upheld by the Federal District Court in New Orleans on 11 February 2009, and the decision of the District Judge was upheld by the Court of Appeals for the Fifth Circuit on 30 November 2009. Thereafter proceedings were raised in Scotland, and in February and March 2010 Lefevre Litigation raised 196 actions in total in the Court of Session in respect of pursuers who claimed to have suffered injury as a result of taking Vioxx. The great majority of these related to pursuers who claimed to have suffered strokes, heart attacks or sudden cardiac death as a result of taking the drug.

[6] Those actions were conducted in accordance with a case management procedure in which attempts were made to identify the key issues that arose in the litigation and to select a small number of lead cases that would enable the most important issues to be decided in a relatively cost-effective manner. One case, involving a pursuer who had obtained legal aid and was separately represented, was identified as one such leading case, and it has moved ahead separately. At the same time further actions had been raised against another drug manufacturer, the Pfizer group, in respect of a drug known as Celebrex. These actions were dealt with in a similar manner to the Vioxx actions; indeed, some cases involved both drugs and proceeded against both groups of defenders. Attempts were also made to obtain disclosure of the very voluminous documentation that relates to the drugs and their possible medical effects.

[7] In December 2011 problems arose as to the representation of the pursuers in the actions involving Mr Blanks, Quantum Claims and Lefevre Litigation. In essence, Quantum Claims withdrew from acting in all of the Vioxx and Celebrex cases and disputes arose between Lefevre Litigation and Mr Blanks as to their contractual responsibilities to each other and to the individual litigants. It appears from correspondence that has now been produced that on 6 December 2011 Lefevre Litigation wrote to Mr Blanks to state that a contract was required between them in order that Lefevre Litigation could act on behalf of Mr Blanks and his clients. It was also suggested in the letter that, if Lefevre Litigation were to continue to act, a payment to account would be required, and Lefevre Litigation would require to be kept in funds in relation to fees and outlays. Mr Blanks replied on the same date, stating that he was not Lefevre Litigation's client; the claimants were their clients. In his opinion Lefevre Litigation were contractually obliged act on behalf of the claimants in the Vioxx and Celebrex litigation in Scotland under a speculative fee arrangement with Frank Lefevre or Quantum Claims. On 12 December Lefevre Litigation replied, setting out their position in respect of the litigation. They indicated that they had no contractual responsibility to the individual litigants, who were not clients of the firm, and would not accept any responsibility for accounts rendered in relation to five pursuers who had decided not to proceed further. Quantum Claims had now withdrawn from involvement in all of the Vioxx and Celebrex cases, and the result was, it was said, that Lefevre Litigation had no contractual obligation to either individual claimants or to Mr Blanks or his firm. If Lefevre Litigation were to act further for Mr Blanks, a written contract would be necessary. It was further stated that, without funding and the provision of appropriate ATE claims insurance, the cases could not be litigated. This correspondence concluded with a letter of 30 December 2011 from Mr Blanks to Mr Lefevre. Mr Blanks stated that the question of the expenses that Quantum Claims would incur in Scottish proceedings had been discussed in October 2010, and that no agreement had been reached to vary the usual terms of business that applied between Mr Blanks' firm and Quantum Claims. Thus in respect of the Vioxx and Celebrex cases, Mr Blanks would be initially responsible for expenses and outlays incurred in any proceedings in the United States and Quantum Claims would be initially responsible for any expenses and outlays in Scotland.

[8] Meanwhile, on 14 December 2011 Lefevre Litigation wrote to Burness, the agents for Merck, to intimate that they were withdrawing from acting on behalf of all pursuers in claims raised in the Court of Session with the exception of eight specific actions where instructions were awaited. They further intimated that information would be provided to enable the requirements of Rule of Court 30 to be complied with. On the same date, similar intimation was made to the Deputy Principal Clerk of Session. Thereafter the procedure under Rule 30 was followed by the solicitors acting for both Merck and Pfizer, with information to the individual pursuers in each case. Meanwhile, at a By Order hearing on 6 February 2012, I asked that Lefevre Litigation should explain the position in respect of their agency in the actions pursued against Merck and Pfizer in early course.

[9] Lefevre Litigation set out the position in a letter of 10 February addressed to Burness. They stated that eight named pursuers were represented by Lefevre Litigation. In respect of the others, who had been referred by Mr Blanks, the letter stated that Mr Blanks had contracts with the individual litigants and that he had requested the services of Lefevre Litigation to raise proceedings. In each case Mr Blanks was granted a power of attorney in the terms set out in paragraph [2] above; a redacted version of the power of attorney was attached to the letter. The writer then stated that, pursuant to the power of attorney granted to Mr Blanks, Lefevre Litigation had been instructed in 2010 to raise proceedings in the Court of Session on behalf of Mr Blanks' clients. When parties were instructed to identify a lead heart-attack case, contact was made with Mr Blanks but Lefevre Litigation had been unable to secure instructions from him. On that basis, it was said, Lefevre Litigation required to withdraw from continued representation and intimation was made under Rule of Court 30. The letter further stated that it was Lefevre Litigation's understanding that on or about 7 December 2011 Mr Blanks resigned from acting on behalf of his clients, and had not recruited alternative solicitors in Scotland. It had been impossible to obtain a clear statement from Mr Blanks as to whether he intended to continue representing individual pursuers. Contact was presently being made with individual pursuers to investigate a means of taking their cases forward, and it was hoped that the court could be informed about this at an impending By Order hearing on 14 February.

[10] By Order hearings were held on 13 and 14 February in respect of the Pfizer and Merck cases respectively. At those hearings those who had represented the pursuers appeared but were unable to give a definitive answer as to how the cases could be taken forward. The cases were accordingly continued to allow a decision to be made on this matter. At the same time Merck and Pfizer were allowed to lodge minutes addressing the issue of expenses in all cases. Intimation of the minute was ordered on Mr Lefevre, Quantum Claims, Lefevre Litigation and Mr Blanks. Merck presented such a minute on 28 February. Answers were duly lodged on behalf of Lefevre Litigation, Quantum Claims and Mr Lefevre, and separately on behalf of Mr Blanks and his law firm. A hearing was ordered on the minute and answers, and the present opinion is the result of that hearing.

[11] The original version of Merck's minute sought a number of remedies. Additions to these were made at adjustment, and in their final form they are as follows. First, Merck sought an order that Quantum Claims and/or Mr Lefevre and/or Mr Blanks and/or Mr Blanks' law firm, being dominus litis in the actions, should be held liable for Merck's expenses to date in the actions that were no longer insisted upon. Secondly, Merck sought an order that, because Lefevre Litigation had acted unreasonably in withdrawing from acting, that firm should be liable for the expenses occasioned as a result of their doing so. Thirdly, Merck sought an order that, as Lefevre Litigation had acted as agents for an undisclosed principal, they should be liable for Merck's expenses in actions that were no longer insisted upon. Fourthly, it was said that, because Lefevre Litigation had conducted the litigation without instructions from the pursuer, without disclosing any authority or engagement, without disclosing their principal, and without a stateable cause of action, they should be found personally liable for the expenses of the various actions. Fifthly, Merck sought an order that the individual pursuers should be found liable for the expenses of the various actions. Sixthly, Merck sought an order that, because Lefevre Litigation and separately Mr Blanks had caused or materially contributed to unnecessary expense occasioned by the Rule 30 procedure, they should be personally liable for the expenses of that procedure. In the event, counsel for Merck did not advance any argument that Lefevre Litigation had acted as agents for an undisclosed principal, and his submissions on whether any of Quantum Claims, Mr Lefevre, Mr Blanks or Mr Blanks' law firm was dominus litis were essentially limited to a response to the submissions for Mr Blanks. In my opinion it is clear that any suggestion that Lefevre Litigation were acting for an undisclosed principal is unstateable. The agency arrangements made to secure the presentation of the pursuers' cases were of a fairly standard nature, and it was quite clear throughout that Lefevre Litigation were acting on behalf of the individual pursuers and Mr Blanks. When it became necessary to disclose details of those arrangements, Lefevre Litigation did so. I consider the argument that Mr Blanks and, separately, others were dominus litis at paragraph [24] below.

[12] So far as the fifth remedy sought is concerned, it is accepted on behalf of the pursuers that in the actions that do not proceed the individual pursuer should be liable for the expenses of process. I was informed that those expenses will be met by Quantum Claims. Consequently that matter is not in dispute. The second remedy and to some extent the sixth remedy might be thought to involve allegations of negligence against Lefevre Litigation in particular. At the hearing, however, no such contention was advanced. I am bound to say that the present minute and answers procedure, which is of an essentially summary nature, does not normally permit detailed examination of the facts. For that reason it is manifestly unsuited to any investigation of allegations of professional or other negligence. Nevertheless, as Merck did not ultimately insist on any such allegations, it is unnecessary to consider this matter further. The arguments presented to me founded on the remaining aspects of the second, fourth and sixth of the remedies sought. In summary, these focus on the manner in which Lefevre Litigation and the other named parties conducted the litigation, with particular reference to the point when a difference of opinion arose between Mr Blanks and Lefevre Litigation and the latter firm withdrew from acting. The remedy sought was ultimately payment by one or more of Lefevre Litigation, Mr Lefevre, Quantum Claims and Mr Blanks of the expenses of the Rule 30 procedure followed in 181 individual actions. A summary of those expenses was produced.

[13] Counsel for Merck stated that the legal basis on which such a remedy is sought is found in Harley v McDonald, [2001] 2 AC 678, a decision of the Privy Council in an appeal from the Court of Appeal of New Zealand, in particular in a passage in the judgment delivered by Lord Hope at paragraphs 41-57. The basic jurisdiction of the court is stated at paragraph 45:

"The undoubted inherent jurisdiction of the courts in New Zealand to make a costs order against the client's solicitor rests upon the principle that, as officers of the court, solicitors owe a duty to the court, while the Court for its part has a duty to ensure that its officers achieve and maintain an appropriate level of competence and do not abuse the court's process".

At paragraph 47 it is stated that, in the case of both barristers and solicitors in New Zealand, "there is the same public interest that a serious dereliction of duty to the court by one of its officers should be dealt with by the court".

[14] It is notable that the jurisdiction question is not concerned with the merely negligent conduct of litigation, far less the making of errors of fact or law. It is directed towards serious dereliction of duty by an officer of the court. Moreover, the duty in question is a duty owed to the court, not to the solicitor's client: paragraph 48. The sanction imposed by the court for such a breach of duty may involve compensation for the disadvantaged litigant, but it is also punitive in nature: paragraph 49. In Myers v Elman, [1940] AC 282, at 319, Lord Wright described the court's inherent jurisdiction as to costs as follows:

"The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally... The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action".

[15] Allegations of breach of duty relating to the conduct of a case by a solicitor with a view to the making of a costs order should be confined strictly to questions that are apt for summary disposal. In some cases serious breaches of the practitioner's duty to the court may raise questions about his duty to his client which involve allegations of professional misconduct, and the possibility of liability in damages for negligence. It is not, however, appropriate when considering whether or not to make a costs order for the court to rule upon whether there has been a breach of the rules of professional conduct: paragraph 51. In such a case a finding of negligence cannot be made without the evidence of a skilled witness that the action taken was one that no solicitor exercising ordinary skill and care would have taken: Tods Murray WS v Arakin Ltd, [2010] CSOH 90, at paragraph [92], per Lord Woolman. That it seems to me, is the reason that the suggestions of negligence on the part of Lefevre Litigation are quite misplaced in the present minute and answers procedure.

[16] Lord Hope went on to consider the kind of conduct that can be regarded as involving a serious breach of the duty to the court. On this matter he stated (paragraph 55):

"A simple mistake or oversight or a mere error of judgment will not, of itself, be sufficiently serious to fall into that category. Something more is required. In Myers v Elman... Viscount Maugham indicated that the test was whether the conduct amounted to a serious dereliction of duty, and that negligence could be so described if it was at a sufficiently high level. Lord Atkin described... the kind of negligence that could lead to an exercise of the jurisdiction as gross negligence. Lord Wright said... that, while a mere mistake or error of judgment is not generally sufficient, a gross neglect or inaccuracy in a matter which it was a solicitor's duty to ascertain with accuracy, such as whether he had a retainer to act, might suffice".

[17] In maintaining that there had been a breach of such a duty in the present case, counsel for Merck founded particularly on Lefevre Litigation's letter to Burness of 10 February 2012; that letter was a response to the court's request for clarification of the position of the individual pursuers and their advisers. In that letter, it was said, Lefevre Litigation had represented that Mr Blanks had resigned from acting on behalf of his clients in December 2011, and had been made aware that Lefevre Litigation would not continue to act on his behalf. The fundamental submission was that Lefevre Litigation had failed to inform either the court or Merck that their client was Quantum Claims, not the individual pursuers, and that Quantum Claims had decided to withdraw from acting. Had that been done, Merck could have served a single Rule 30 notice on Quantum Claims, rather than the 181 individual pursuers. As a result, the defenders had been compelled to incur court dues of £28,500 in respect of entering the individual processes (which had been sisted) and enrolling the motion.

[18] In my opinion this argument is not correct, and does not disclose any basis for invoking the court's jurisdiction to make an order against a solicitor for a serious dereliction of duty. The background to events was the series of legal relationships among Lefevre Litigation, Quantum Claims, Mr Blanks and the individual pursuers. The relationships among Lefevre Litigation, Mr Blanks and the individual pursuers were based on agency. While agency is in itself an extremely simple legal concept, agency relationships can be developed into complex structures, and this is such a case. The basic nature of the arrangement appears to me to be as follows. Quantum Claims introduced individual pursuers to Mr Blanks, and the pursuers entered into contracts, in the form of the Power of Attorney Contract, with Mr Blanks and his law firm. A power of attorney is a form of agency, and the result of that contract was that Mr Blanks and his firm became agents for the individual pursuers. When litigation in Scotland became necessary, Mr Blanks instructed Lefevre Litigation to act. At this point it does not appear that any of those concerned applied his mind to the precise nature of the legal relationships involved. Nevertheless, Lefevre Litigation were acting as solicitors, and that necessarily involves an agency relationship. That agency may not be with one party only; for example, in cases where an insurance company is involved through its right of subrogation, the solicitor who acts may have an agency relationship with both the insurance company and the nominal party to the litigation. This appears to me to be a similar case. Lefevre Litigation were acting as agents for Mr Blanks, and to that extent he was their client.

[19] They were also, however, acting for the individual pursuers, and would obviously owe the individual pursuers the usual duties of a solicitor to conduct litigation with due care and skill and the like. In my opinion that must also be characterized as an agency relationship, and the individual pursuers must also be regarded as clients of the firm; the notion of "client" in my view signifies any party for whom the solicitor can be said to be acting as an agent. Quantum Claims were also involved in the arrangements, in that they undertook to reimburse the individual pursuers for any liability in respect of the expenses of the Scottish litigation. That clearly means that they were parties to the overall arrangement, but this was essentially a funding arrangement rather than an agency relationship, and it was with individual pursuers rather than Lefevre Litigation. Consequently there is no basis for holding that Quantum Claims were "clients" of Lefevre Litigation, far less "the" client of the firm.

[20] In December 2011 disagreements arose between Mr Blanks and Lefevre Litigation as to the future conduct of the actions. Two problems appear to have arisen. In the first place, there was a disagreement as to the liability for expenses and outlays incurred in the course of the Scottish proceedings. Under the standard arrangements entered into between Mr Blanks and Quantum Claims it was Quantum Claims who were liable for refunding these to the individual pursuers, but Quantum Claims thought that there should be an exception in the Vioxx and Celebrex litigation, no doubt because of the large number of cases involved and the very substantial outlays that are required to investigate complex medical questions. In the second place, Lefevre Litigation, acting under a direction that I gave at a case management hearing, attempted to select test cases on the basis that they raised as many as possible of the issues that were likely to arise in the totality of the claims. Such issues had been identified in litigation in other jurisdictions, notably Australia, and I thought that it should be relatively easy to identify cases that raised as many as possible of the important issues. That meant, of course, that the parties could not simply select the cases that they identified as their strongest; they had to take a range of other factors into account. If only the strongest cases were selected, the problem was that the decision on the merits might only be applicable to the particular case, or other very similar cases, and would not help the progress of the entire cohort of cases that had been brought before the court. That would inevitably result in considerable expense owing to the need to litigate further cases which raised additional issues.

[21] While Lefevre Litigation attempted to follow the court's instructions, Mr Blanks disagreed, and thought that only the strongest cases should be put forward. On that basis, he did not in Lefevre Litigation's opinion co-operate adequately in selecting appropriate test cases, and as a result of that Lefevre Litigation withdrew from acting. At this point Lefevre Litigation were clearly placed in a difficult position, as they were acting for both Mr Blanks and the individual pursuers. Moreover, the individual pursuers had signed the Power of Attorney Contract, which gave Mr Blanks a considerable degree of control over the actions. On that basis it is difficult to see that Lefevre Litigation could have done anything other than to withdraw from acting; they had a fundamental disagreement with one of their clients and that prejudiced their ability to obtain instructions on behalf of their other clients. That obviously left the possibility that Mr Blanks would continue to represent the individual clients and would obtain alternative representation in Scotland. That was the final point made in Lefevre Litigation's letter of 10 February 2012.

[22] In the foregoing circumstances I am of opinion that Lefevre Litigation could not in January or February 2012 have given the court more definite information than they did in the letter of 10 February as to the position of the individual pursuers and Mr Blanks. There is accordingly no basis for finding that there was any "serious dereliction of duty", or any ground on which that firm could be ordered to pay expenses on a personal basis in accordance with the principles stated in Harley v McDonald, supra. Nor could Lefevre Litigation have stated, as Merck contended, that Quantum Claims were their client; in my view their clients were Mr Blanks and, separately, the individual pursuers. Quantum Claims were responsible to the individual pursuers for funding the expenses and outlays of the Scottish litigation in so far as incurred by those individuals. In practice that would almost certainly involve their reimbursing Lefevre Litigation for such expenses and outlays. That does not mean, however, that there was any contract between Quantum Claims and Lefevre Litigation, and it certainly cannot be said that such funding arrangements made Quantum Claims "clients" of the firm. Moreover, no basis has been suggested on which Quantum Claims could have had any obligation to Merck to meet the latter's expenses unless they were the dominus litis, a position that was not maintained in submissions. Consequently I am unable to see any ground for holding Quantum Claims directly liable for any part of the expenses incurred by Merck.

[23] Merck's main complaint, at least as presented in argument, relates to the expenses of the procedure under Rule of Court 30, and in particular the need to incur expenses in 181 separate actions. Clearly substantial expenses were incurred in this connection. Nevertheless, it is difficult to see that any alternative was possible in a situation where the pursuers did not appear to be represented before the court. Lefevre Litigation had withdrawn from acting; Quantum Claims had no agency relationship with the individual pursuers, and in any event had withdrawn from the funding arrangements; and Mr Blanks had also withdrawn from acting. Consequently no one other than the individual pursuers could agree to any form of shortened or less expensive procedure, such as by intimating to one representative for all of them. Thus it cannot be said that any of the actings of Lefevre Litigation, or any statement made on behalf of that firm to the court or to Merck's representatives, made the Rule 30 procedure more complicated or more expensive. Nor was there anything that Lefevre Litigation could have done to lessen the requirements of the procedure. In my opinion this is an additional reason for holding that there was clearly no "gross dereliction of duty" on the part of Lefevre Litigation, and is an additional reason for refusing Merck's primary motion. As to the treatment of the expenses incurred in the Rule 30 procedure, I am of opinion that the correct disposal is that suggested by counsel for Lefevre Litigation, namely that the expenses of the Rule 30 procedure should be remitted to the Auditor of Court for assessment.

[24] The position of Mr Blanks and his law firm is somewhat different from that of Lefevre Litigation, Mr Lefevre and Quantum Claims. Originally the only basis on which a remedy was sought against Mr Blanks and his firm was that they were dominus litis in the actions. Subsequently it was said that they caused or materially contributed to unnecessary expense occasioned by the Rule 30 procedure. Mr Blanks and his firm of Joseph C Blanks PC were separately represented. Their counsel submitted that the only basis on which there could be any jurisdiction against either Mr Blanks or his firm was that either or both of them were dominus litis in the litigation. In my opinion that must be correct. Both are domiciled in Texas, and it was not suggested by Merck that either of them was otherwise potentially subject to orders for expenses. Moreover, neither Mr Blanks nor his firm is an officer of the Court of Session, and the basis of jurisdiction discussed in Harley v McDonald, supra, is absent.

[25] The classic definition of a dominus litis is found in the opinion of Lord Rutherford in Mathieson v Thomson, 1853, 16 D 19, at 23-24: a dominus litis is:

"a party who has an interest in the subject matter of the suit; and through that interest, a proper control over the proceedings in the action. Now it will not make a person liable in the expenses of an action that he instigated the suit, or told a man that he had a good cause of action, and that he would be a fool if he did not prosecute it, or though he promoted it by more substantial assistance. It will not make him liable in the expenses of the suit, that while he does both of these things, he shall have some ultimate consequent benefit in the issue of that suit. But when you go a step further, and find that a party with a direct interest in the subject matter of the litigation, and through that interest master of the litigation itself, having the control and direction of the suit, with power to retard it or push it on, or put an end to it altogether, then you have a proper character of dominus litis; and though another name may be substituted, the party behind is answerable for the expenses".

In McCuaig v McCuaig, 1909 SC 355, Lord President Dunedin stated (at 357) that for a person to be dominus litis he must have "the true interest in the cause", in the sense of "the whole interest for all practical purposes". In the same case Lord President Dunedin stated that the true test is probably whether a party has or has not the power to compromise the action. McCuaig was accepted as stating the law in Eastford Ltd v Gillespie, 2011 SC 501, at 510. In the present case, the Power of Attorney Contract makes it clear that neither Mr Blanks nor his firm had power to compromise the claims of individual pursuers. Mr Blanks and his firm had a partial interest in any damages that might be awarded, as occurs under any contingency fee arrangement; nevertheless, that does not affect the entitlement of the individual pursuers to payment of any damages that may be awarded, and in my opinion is plainly insufficient to render either Mr Blanks or his firm dominus litis. On that basis, I agree with counsel for Mr Blanks that there is no basis for making either him or his firm subject to the jurisdiction of the Scottish courts.

[26] For the foregoing reasons, I am of opinion that Merck had no legal basis for making any of Lefevre Litigation, Mr Lefevre, Quantum Claims, Mr Blanks or his law firm liable for any part of the expenses that have been incurred. The expenses incurred under the Rule 30 procedure must be assessed, however, and as I have already indicated I consider that the appropriate course of action is to remit the matter to the Auditor of Court to allow him to assess those expenses. That will apply to all of the cases where the procedure was used, although obviously it is to be hoped that a small number of cases can be used as typical examples. I will also find the individual pursuers whose actions are not to proceed further liable in the taxed expenses of process in those actions. Otherwise I will refuse the remedies sought in Merck's minute. I was invited to deal with the expenses of the minute and answers procedure, and I will accordingly find Merck liable to Lefevre Litigation, Mr Lefevre and Quantum Claims and to Mr Blanks and his law firm for their expenses incurred in that procedure.