Hundreds of former rugby league and rugby union players taking legal action against the game’s governing bodies are now “staring into the precipice”, according to the barrister representing the claimants, Susan Rodway KC.
Richard Boardman, the solicitor who has been the organising force behind the litigation, has requested formally to come off the record after his handling of the case was criticised by the managing judge, Senior Master Cook. The case may now be taken over by Leigh Day, who have been working on it as consultants since February.
The players issued a statement on Wednesday night that they had decided to “terminate the instruction of Rylands Garth” and that the process of appointing new solicitors is under way. “This decision has not been taken lightly. We would like to place on record our sincere gratitude to Rylands Garth and in particular Richard Boardman,” the statement said.
“We concluded it was in the best interests of the claimants to appoint a firm with resources and specialist expertise required to lead the litigation through its next phase. We would like to reassure the court, our fellow claimants and the wider rugby family that we believe this represents a positive step in progressing the litigation.”
Cook described it as a “dramatic change”. It comes as the claimants face the threat of strikeouts because of Rylands Garth’s failure to comply with the judge’s order to disclose to the defendants all available medical documents. If the strikeouts go ahead, then hundreds of claimants will be removed from the proceedings.
“There is a sword hanging over these players,” Rodway said, as she appealed for relief from the strikeouts. “Although the issues are generic the impact of them relates to distinct individuals who have suffered life‑changing injuries, and who have suffered enormous stress and anxiety.”
Some, Rodway said, have taken their own lives. “These are not claims for double glazing gone wrong, but for catastrophic brain injuries and each of these players has a claim for hundreds of thousands, if not millions, of pounds.”
According to Boardman’s court filings, Leigh Day is “engaging in a period of due diligence in order to decide whether they would be in a position to take over subject to the clients’ agreement”. A spokesperson for Leigh Day said the firm “have not had an opportunity to properly consider whether they can come on record as solicitors in this claim” and that they “are reviewing the position”.
The claimants argue “the change of solicitor on the record not only demonstrates how seriously the claimants take the criticisms levelled at them, but that there will be a completely different regime going forward in which both the court and the defendants can have full confidence”.
Confidence seems to be in very short supply. For the past two years, both cases, which are still in the pre-trial phase, have been held up by a series of arguments about whether or not Boardman’s firm, Rylands Garth, have complied with their disclosure obligations.
The defendants – World Rugby, the Rugby Football Union, the Welsh Rugby Union in one case, and the Rugby Football League and the British Amateur Rugby League Association in the other – requested originally to be allowed to conduct their own medical testing on the claimants. It was decided by the court this full medical testing would be “complex, expensive, and unnecessary” and that the claimants would be obliged to disclose all medical records in their control to the defendants.
The two legal teams would then be able to select their own pools of proposed lead claimants from among the hundreds involved. There has been little progress in this because, the defendants argue, Rylands Garth has failed repeatedly to provide all the documents.
Cook was unequivocal that he agrees with them on this. He said he felt “at a loss to understand” Boardman’s position. “On any view there has been widespread non-compliance and there has been late compliance.” He also accused Boardman of “providing misleading evidence in court”.
“We’ve been four years trying to get to this point,” he said. “It has required orders and those orders have had to be backed up by an Unless Order, and even that wasn’t accepted, but appealed against.”
Cook did not agree with the claimants’ argument that the defendants were pettifogging them. “It’s not the defendants being difficult for the sake of being difficult, it is the defendants wanting to make sure this process has integrity we can all rely on. We’re here to do justice to people, but the process has to have integrity.”
Rodway argued the claimants “are altering the process and will have a different person at the head” and that “the change of solicitors is significantly important because it shows the players taking matters into their own hands”. Leigh Day recently won a case against British Gymnastics over abuse allegations in the past. It is understood that Boardman intends to remain involved in the case as co-counsel.