the defendant could not therefore establish a defence under Article 7(e).

Burton J also addressed the consequence had the defendant’s construction of Article 7(e) been accepted63 and resolved several causation issues and a number of damages issues. It is not proposed to discuss those matters here.

Envoi

Participating as advocates in the case was a great honour. No other European country would devote so much care and resources by so many specialised lawyers to settling a question of product liability for personal injuries. The judge can have handled little else for about six months. The courtroom was filled with medical and legal authorities who came and went. The atmosphere was quiet, orderly, courteous, confraternelle and intense, qualities that are not necessarily found in every Member State. The Legal Aid authorities in England are to be commended for making enough money available to permit a good job to be done. As advocates we had the privilege of very thoroughly prepared written pleadings, the loose rein but firm grip of very experienced instructing solicitors, a broad and deep survey of the academic literature in at least twelve countries, excellent professional relations with our opponents (throughout the case) and the undistracted attention of an interested and talented member of the judiciary with a gift for languages and an interest in the development of the law.64 The quality of the judgment, its thoroughness and comprehensiveness, reflect the amount of money and time which the legal system in our country traditionally affords to the resolution of important matters affecting ordinary people. By continental European standards this was luxury justice.

Recently Mr Justice Lightman gave an interesting lecture.65 Without dissenting from many of his observations (e.g. about the value of good preparation and pre-trial resources), we respectfully but firmly disagree with his suggestion that a continental European approach to civil litigation would deliver a better quality of civil justice than is provided by the systems

63Paras. 181 to 187.

64And, also in accordance with the traditions of the English Bar, all the barristers and the judge had a dinner together, and the menu for the dinner contained such dubious delicacies as Potage g´en´erique, Agneau r´eform´ par Directive, Fromage r´esolumment anglais sans r´ef´erence aux normes europ´eennes, capped with Caf´e de l’avenir (the which beverage was named in the (ill-founded) expectation that an appeal was inevitable).

656th Edward Bramley Memorial Lecture, University of Sheffield.

represent the eventual (and largely notional) ‘collective intention’. Although the authors may be formally correct to say that it was eventually ‘agreed’ that they would not seek to rely on Dr Taschner’s evidence, that agreement was only reached after the Judge had made it plain that he accepted the validity of the Defendants’ objection. The point seems to me important because it is sometimes thought, or assumed, that familiar domestic rules as to the admissibility of evidence can be ignored when ‘Euro-issues’ are in play. That may be so where the rules are purely local and technical; but where, as here, they reflect legitimate objections of principle they should apply equally whatever the source of law being relied on.

My second point is not dissimilar. The authors explain that they obtained from the archive of the European Commission a mass of minutes and associated materials showing the formal progress of the draft Directive. These went far beyond the drafts which appeared in the Official Journal and the other formal travaux pr´eparatoires which are sometimes relied on. The Defendants objected to the admission of these materials – partly because of their sheer untranslated dullness, but also as a matter of principle. The trouble with such materials is that they can give the illusion of completeness but in fact only tell part of the story. In this case, for example, the minutes largely ceased at the crucial moment when the Directive entered the black hole of consideration by the Council of Ministers. It was impossible to find out from them what considerations – if what was no doubt largely a matter of political horse-trading can be so dignified – influenced the final form of the Directive. Again, there was no formal ruling; but the Claimants agreed to a short summary of the legislative history based almost wholly on materials from the Official Journal, and virtually none of the minutes were referred to in Court. Again, the moral is that the introduction of Euro-issues is not carte blanche for unrestricted reference to the legislative history.

My third point is somewhat different. Our prolonged discussion during the trial of a variety of comparative law materials often left me with the feeling that we were skating – enjoyably and with a fine display of linguistic talent (my own lagging behind that of the Claimants’ counsel) – on very thin ice. At any point we might fall through the surface and discover ourselves seriously out of our depth. Comparative law materials are not easy to use properly. If they are not in English they have to be translated: even when translated, unfamiliar terminology, concepts and procedures have to be explained if basic misunderstandings are to be avoided. There is no expert available to the Court, which is accordingly dependent on

national courts, we may, nevertheless, each be arriving at our own different result.

4.It is in my experience very rare, short of the House of Lords, for a court to have the opportunity to look at so much foreign law and academic authority as we did in the Hepatitis C case. This was not just because of the importance of the case and the time which had been set aside for the hearing, but I think largely because of the novelty of the issues and arguments, at any rate in an English court. There has been a considerable jurisprudence developed in the United States which, on analysis, did not appear to be of great assistance in the interpretation of the somewhat differently drafted European Directive, but, that apart, there was little jurisprudence throughout the world, and certainly very little in England and Wales. In attempting to arrive at the correct solutions, an English judge in those circumstances had to look abroad at any rate for his starting point, and the parties gave me that opportunity.

5.The same novelty meant that whereas, on some occasions, in a long case it may be possible, as the proceedings continue, for a judge to be reaching provisional conclusions, or even provisionally drafting parts of his judgment in advance, this was not possible for me. Indeed I had an entirely open mind and was very much swayed first one way and then the other as the argument and evidence continued and developed. This meant that, once the case finished, I was able with a blank sheet of paper to re-read not only my notes but, more importantly and more accurately, the transcripts of the forty-nine days of evidence and argument, and in particular to reconsider the bundles, including the comparative law. I was given some five weeks ‘time-off ’ to write the judgment, and I just about managed it in the deadline, working the sort of hours which I had thought I had left behind at the Bar!

6.The full and detailed oral argument was in my view essential to ensure both proper investigation of the issues and to put me in a position to arrive at an informed and reasoned decision. Bad ideas (whether coming from Counsel or from the Judge) can be tested and discarded. Good ideas can actually emerge in the course of discussion, but in any event can be tested and developed. Misunderstandings can be eliminated. Difficult arguments can be explained and reiterated. The need for oral argument, both in respect of the legal submissions and in due course by reference to the factual disputes, the time necessary for exploration and assimilation of the documents and above all the need for examination and cross-examination of the considerable number of important

witnesses, both factual and expert, meant that it took a great deal of co-operation, hard work and case management to achieve a situation in which everything that any one wished said or read was completed in forty-nine days of hearing.

7.It is certainly right that my judgment ended up very much longer – perhaps at least ten times longer – than any of the cases which we had been considering at any rate in European jurisdictions. Perhaps it is right to suggest that the traditional English legal proceedings are a luxury. But it is certainly the case that it is expected of the judge to give full reasons, analysing all the evidence and law before him or her, and in a case such as Hepatitis C, by reference to the British system, after a three-month trial, this inevitably meant a long judgment. One of the authors of this article, Ian Forrester QC, has told me that in conversation with some European judges he has found them astonished that our judgments are of the length they are, and he says (although I am not sure I believe him!) that they wish they were permitted or encouraged to follow suit. The time when this kind of detailed analysis, giving proper credit to the arguments, both of law and fact, put before the judge during the course of the hearing, is of particular importance is, naturally, at the ground-breaking stage. Hepatitis C was the first case in England and Wales in which any detailed consideration had been given to all the relevant aspects of the European Directive, and there were very full and thorough arguments by very able counsel to be resolved. It may be that the very setting out in detail of my reasoning, which had to be given in the judgment, contributed to a decision not to appeal.

8.Perhaps the most important matter to emphasise, from the judge’s point of view, under our system, is of course the fact that our procedure is adversarial. Absent a case in which a judge happens to be familiar with an authority of which none of the parties in front of him had previous knowledge, in which case he would draw it to their attention and give them an opportunity to make submissions on it, the judge depends upon being ‘fed’ with information and authorities from the various parties in front of him. We are not expected to do our own research and we do not have any system of researchers or clerks to do any original work for us. It is therefore interesting to me to read in this article how it came about that the various documents were collected and put before me. But I made my decision solely on the basis of those documents and authorities. At one stage prior to trial I asked the parties whether they thought it would be a good idea if I were

accompanied by an expert assessor (as is now occasionally the case in our courts), who would have no part to play in the decision-making, but could assist the judge in relation to reading and assimilating the documentation, particularly on medical matters. The parties were both strenuously opposed to the idea, and I did not pursue it, because in fact I agreed with them. There is clearly a risk in the appointment of an assessor, that the judge will find himself delegating either some part of his understanding or possibly some part of his decision-making to someone else: and at least the parties knew who it was that they were in the process of educating and then persuading during the hearing. But the result of this fact, that it is the judge who is being educated by the parties, and not carrying out his own independent research, is that sometimes outsiders do not understand why points are not dealt with by the judge. Indeed such an experience occurred to me in this case. Professor Stapleton, the leading expert in the field of consumer law, to whom reference has been made above,72 was kind enough to take me out to lunch some months after the judgment and, from her deep understanding of the law, she belaboured me over points that I did not seem to have taken into account. I was able to indicate that, so far as I could see, such points, even if otherwise available to either of the parties on the particular facts, had not in fact been put before me. This means that perhaps the Hepatitis C case, notwithstanding that it was not appealed, will not be the last word on the subject!

72 See footnote 14 above and the author of Chapter 15 of this work.