3.24R (Eisai Ltd) v NICE [2008] EWCA Civ 438, (2008) 11 CCLR 385
Fairness required full disclosure of a computer model on which decision-making was based so as to permit the consultee to seek to undermine the validity of the model; considerations of administrative difficulty should not usually outweigh what fairness requires
Facts: NICE granted only limited approval for the use of a drug manufactured by Eisai. Eisai succeeded at first instance in establishing that NICE had failed to comply with anti-discrimination legislation, but not that its consultation process had been unfair. Eisai appealed on that issue, contending that it had been unfair that NICE had provided no more than a read-only computer model of the cost-effectiveness of Eisai’s drug, rather than a fully executable model, that could be run with different inputs and assumptions, so as to test its reliability.
Judgment: the Court of Appeal (Tuckey, Jacob and Richards LJJ) allowed Eisai’s appeal, holding that (i) the economic model was central to NICE’s appraisal of the cost-effectiveness of Eisai’s drug; (ii) Eisai might be able to criticise the economic model; (iii) it could only do that, if it had a fully-executable version of the model; (iv) the extra time and cost involved, and other administrative considerations, did not undermine the conclusion; that (v) balancing all the factors, including the very strong public interest involved, fairness demanded that NICE supply Eisai with a fully executable model
65. If fairness otherwise requires release of the fully executable version, the court should in my view be very slow to allow administrative considerations of this kind to stand in the way of its release.