9 June 2022: Fenwick - A

Mr Fenwick was a former Grenadier Guard before becoming a lawyer and QC. He represented the Department of Health (DH) during the HIV Litigation. His former clients had waived their rights to allow their former lawyer to give evidence as an individual. The witness had experience of litigation related to health matters. The bulk of the questioning would relate to the HIV litigation.

He recalled thinking at the time how the case of what happened to the haemophiliacs was so terrible that it would have inevitably resulted in a public outcry and the need to provide some kind of payments. Beyond that memory, he mostly had to rely for recollection on the papers provided to him by the Inquiry. He was the only “Junior” (QC) who was involved throughout the HIV Litigation. In effect, he was the only Junior, which was not too uncommon in those days. The “Silk” he was led by was someone who was a Treasury Solicitor who had been on the “Treasury Panel” (of lawyers) for 20 years. The witness mainly received “instructions” from other solicitors, but there were often civil servants present. Dr Andrew Rejman was recalled as having “pretty strong views”. He was the person the solicitors normally went to on any medical or technical questions. Some instructions were in writing, but in a pre-email era, much communication was verbal.

The concept of “breach of statutory duty” was explained as being the responsibilities to act in certain ways which were placed on people or more likely on bodies such as governments. They included duties of care to the public at large rather than on behalf of individuals. Normally, a duty is “owed” to the general public, but rarely to a lone individual. It involved the concept of what was “unreasonable” rather than straightforward negligence. Negligence was the “lower” duty while unreasonableness was of a higher order and would be the issue over which judges and others wrestled when debating a case and coming to a determination. For those involved in medicine safety, it involved assessing the balance between the therapeutic benefits with their efficacy in making people better, in contrast to any side-effect disbenefits. It included the balance between what was better for “the many” as opposed to the few. When it came to bodies such as licencing authorities, decisions were taken mainly by groups of individuals who worked voluntarily, and with a recognition of the possibility of litigation if things went wrong; including the desire was to protect the individuals involved from being personally liable. “There was a very real concern that they would be named,” said the witness in relation to the prospect of a legal claim. It was thought worthwhile doing things with protections for those involved so that people would not be put off from being agreeing to give their time. These were usually people who were at the top of their professions. The witness described the UK arrangements as a “world class” system of licencing.

The concept of “class action” came across from the US to become the now well known “group action” approach in the UK. Pursuing individual cases was not a good way of taking these types of legal challenges forward, so the US “blame culture” was imported. Further, big and powerful bodies such as pharmaceutical companies would use their own considerable resources to battle claim, so it became easier to make a claim against the Government because they were seen as a “softer” target. This period of the questioning could not avoid becoming very dependent on legal parlance which would likely have led increasingly to the exclusion of the lay person.

Advice by Andrew Collins summarised the case against the Crown in relation to what was referred to as “the so called HIV Litigation” (sic). Counsel recalled David Mellor making his feeling known on these issues when he was giving evidence on these questions related to the of duty of care. The witness referred to “attacks” on the licencing authority, which seems an unhelpfully stark use of language in the context of a public service body. It seems similar to the term “evidence being seized” as used by the police, when all they were doing was picking up a document from someone. “Andrew was always robust” the witness stated when commenting on some legal advice to Ministers drafted by him when it was displayed. There was a comment about the case for compensation beyond what might be established in law, because there could be a case for compensation from a political standpoint. “You cannot compensate everyone who suffers a misfortune” he said, but he continues by explaining how Government can fill in the gap when the law does not allow for money to be available in legal cases when the plaintiffs would clearly all lose; with all the impacts on them of that outcome. Then it would be about the public perception of responsibility and the political will to respond to or resist non-legal pressures.

So, it appears that the lawyers and the DH had accepted the strength of their position if faced with challenges from haemophiliacs under the law. Thus, the focus moved to the option of possibly making payments on the authority of Parliament rather than under the law. A newspaper-led campaign for supporting victims of viral infection was described as “ tiresome”. It led to a discussion  about how press campaigns are frequently run in parallel to legal action in an attempt to influence outcomes. The witness said he “deplored” that trend. The role of a court was not to take account of the ”court of public opinion” when determining the merits of a case. However, if the Government sought to suppress such activity it would be interpreted as putting undue and unfair pressure on the freedom of the press or of seeking to bury a story, even in cases when the lawyers were confident of the law finding against the plaintiffs. The case for compensation is not always a matter to be settled in law exclusively. The case to compensate may be compelling due to other factors, and indeed, dragging the matter through the courts could well cause further harm to those already harmed. The witness also mentioned the balance between acting to pay out regardless of what the Law might allow for, contrasting that with the possibility of risking setting a precedent which could open up flood-gates. Mr Fenwick had put advice forward over the merits of the Government preparing to pay compensation due to the particular circumstances of the virally infected community, beyond the expectation that the Government would win in the courts.

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