9 June 2022: Fenwick - C

Mr Fenwick commented on the unusual intervention of Mr Justice Ognal, who was acknowledging the weaknesses of the plaintiffs’ case, but who also wanted to highlight the uniquely worthy case they had for being compensated. While the witness gave advice on the options about what was legally do-able, it was a Ministerial decision on how to proceed. Despite the various suggestions that it might be best to go down the route of providing payments regardless of the legal case being weak for plaintiffs, between the relevant Ministers, Ken Clarke and Virginia Bottomley, they came back with the instruction to continue to fight the legal case with a view to winning it.

The advice of the DH solicitors included ways to avoid a “dangerous precedent”, which seems to be another unhelpful way of describing a potential outcome. The “no-fault compensation” system would have been quite unprecedented. Agreeing to only make payments to legal case plaintiffs would have appeared to have been completely unfair to those who had not engaged in legal action but had nevertheless experienced the same detriments of infection.

Counsel reviewed a document from the time summarising the accusations which were being made against the DH. It led to a consideration of the “seriousness” or otherwise of HCV infection. This aspect of the claim was still seen at the time as something which the plaintiffs could not turn into a strong case against the DH. However, internal documents suggested the rather more insecure position of the DH form stressing the severity of impact of HIV infection, and it’s completely unexpected arrival on the scene. HIV was not considered to be a safe place for the DH to “hide behind”, especially if it was used to push the idea of HCV being not nearly so impactful.

When asked to reflect on the case during its progress, the witness thought that there was not too much change to the overall thrust of the way the case was being defended. It remained a matter of focussing on the three areas of (i) duty of care, (ii) breach, and (iii) causation.

As things gradually moved towards seeking to settle out of the court context, it became clear how once again (and despite his protestations to the contrary), Ken Clarke was the hawk-character who wanted to tie down the waiver, to wait for the plaintiffs to put their head above the parapet by stating their idea of amounts, and to ensure guarantees of no other comebacks. Apart from the massive power imbalance, the Government were using confidence in the strength of their legal position to bully the already vulnerable plaintiffs into a conclusive submission which suited the State. Around this time, the Chancellor, Geoffrey Howe, resigned which prompting a Cabinet re-shuffle. Ken Clarke left the DH to become Chancellor, with William Waldegrave taking over at Health.

When asked if he had any idea or sense of pressure being put on the Legal Aid Board by civil servants which would favour the Government position, the witness said knew of nothing of this sort, so short of private correspondence being exchanged, he really did not think it happened. He confirmed that if he personally had been asked to apply pressure of this nature he would not have done so.

William Waldegrave was described as a different type of Minister to Ken Clarke. A short time afterwards, John Major replaced Margaret Thatcher as Prime Minister. Mr Fenwick felt that not only the different personalities, but also the opportunity of having a new approach simply as a result of the changes, allowed for the advancement of the HIV Litigation settlement. The total cost to the Government of the settlement was just under £42million. It included a disregard for benefit purposes and allowing previously initiated negligence claims against individual clinicians to still go ahead. The witness regarded the eventual settlement as a pragmatic outcome.

The announcement in Parliament before advising plaintiffs of the terms of the settlement might have been a way of stopping the plaintiffs from getting together pre-emptively to push back against, Counsel suggested. The witness would normally have expected the agreement to be signed off before the announcement, in case there were difficulties, but that never happened here. He was not able to say why things were done that way round. He had admitted in his statement that he had a main role in drafting related documents, including the text of the settlement. He felt supported in his role and there were no unusual ways things were done from his recollection. Dr Rejman was the main contributor to the drafting of the settlement from among the medical personnel of the DH.

The final topic for this witness was the matter of the dreaded waiver. The settlement document underwent several iterations. Within it, on the matter of not pursuing any further legal action other than those individual cases already initiated, Mr Fenwick agreed with the suggestion that it was a fairly “broad” description of what could not be taken forward. The witness agreed that he was the one who was mainly involved in the drafting process. He suggested that the health authorities would likely have been included in the drafting process by this stage, hence the continued and increasingly tightened up restrictions on any future claims. There were also elements proposed by the plaintiffs, and these too were incorporated, as far as they were acceptable, into the emerging settlement document.