9 June 2022: Fenwick - D

The detail of wording to be included in the settlement document was becoming the devil such writing is sometimes accused of being. Counsel brought the matter back to the fact that the original litigation was about HIV, yet hepatitis became embroiled into the settlement. Strangely and very surprisingly, it appears that it was the plaintiffs, through their legal representatives, who introduced the idea of not pursuing future claims related to HCV. The explanation for this became deeply legalistic and very nuanced. In part, it was tied to the expectation of HIV infected people being likely to die sooner rather than later. “Nobody was thinking of Hepatitis at this time,” said the witness. So, for those plaintiffs who all had HIV, there was a justification for not including HCV, but this was very peculiar to the situation at the time of the drafting of the settlement document. It begs a speculative question: was the waiver as it related to Hepatitis infections, a matter of ignorance, or an understandable but misplaced strategic move, or simple bad timing, or just bad luck for future infectees, or ironic good luck for the Government, or was the waiver the result of a much deeper and darker contrivance?

The on-going exploration of these issues between the witness and Counsel veered more and more towards being a spectator sport of legal badminton.

Despite a previous promise of remaining questions being those of a final topic, another final topic was announced – the HCV Litigation. It was noted how elements of that later action benefitted from the HIV Litigation, such that parts of the wording related to the newer case included, effectively, a simple cut and paste job from the former to the latter. By this time, some documents which had previously been lost were found in the intervening period. There had also been advice given by the witness in light of the HIV experience, that particular efforts should be made to ensure that documents related to HCV must be carefully preserved, since he recognised the potential for litigation in relation to HCV and wanted to avoid a repeat of the lost documents scenario. There was another call for an internal investigation to speak with the previously named individuals (Dr Metters, his former secretary, Dr Rejman, the person who signed off the document destruction, and the storage facility, etc.) Again, it was not to be a “witch-hunt” but a learning exercise.

Finally, finally, the witness was asked if he had any sense that there was a reason or motivation for the destruction of document (i.e. Was it deliberate?) He agreed that it was unusual and very frustrating, and that an explanation should have been sought. Since he could not point to anything specific, he had to conclude that it had been a mistake.