9 June 2022: Fenwick - E

Belatedly, it has been noted how much the witness resembles former Cabinet Office Minister, Damien Green. Mr Green was the original Sponsoring Minister for the Infected Blood Inquiry. He promised in a meeting to engage further with victim-survivors about who the Government planned to appoint as Inquiry Chair when that was about to happen, before announcing the name in Parliament; just in case there was an otherwise unknown issue. But Damien G left his job, and the next we heard the announcement of Sir Brian Langstaff was made. A Freedom of Information request on the issue was met by a claim that there had been no record of the commitment (but this writer knows better because he was there). But returning to Mr Fenwick …

Core participants questions:

On advising on litigation in Scotland; he said he was not involved in advising on this, is not qualified in Scot’s law, and did not have a person he liaised with in Scotland.

On Wales and Northern Ireland; he did not have anything to do with action in those areas either.

On the waiver to stop HCV claims (including a letter from Dr Rejman to Dr Kernoff about writs from patients related to HCV who did not have HIV); he did not have any involvement but thought it would be more related to clinical negligence claims from someone who was a non-plaintiff in the HIV Litigation but who had developed HIV and given access to the Macfarlane Trust monies, explained in part by noticing a difference in wording.

On the possibility of the waiver extending to anyone who might subsequently develop HCV on the alleged suggestion by Dr Rejman or others associated with the DH; he did not have any recollection of such a suggestion coming to him as an attempt to “sneak this past” to apply to everyone. Dr Rejman may well have brought up matters related to avoiding HCV claims, but not for the reason asked about.

On the wording of the final version of the waiver; he said it looked like “committee wording”, with everyone wanting to see their bit included.

On the benefit disregard being included in the waiver/settlement; he did not see the limitation to any future HCV claim as a trade off for the disregard in relation to benefits. He said it was not what they were trying to do. It would not have been morally right.

On the waiver requiring all plaintiffs having to sign-up to it; he said it was certainly the desire of Government to avoid future claims. He thought the Government could never have got away with it because some people will always want their day in court.

On the case of someone wanting to go to court, how would they do that; he said currently, “Legal Aid has all but disappeared” as it was back then, so a person would either need a benefactor or find a no-win, no-fee lawyer.

On a document where the witness is reported to have said “there were gaps” in the Government case; he said he did not recall having that thought, but it was possibly about gaps in the documents, since if it was about gaps in the care given, that would have been a failure which would have amounted to negligence, but his other views suggested there was no strong case for negligence.

On the missing files, and whether or not he had been surprised, or asked why; he did remember being surprised by the lack of documents. When email first came in as a growing means of communication, he said the initial official response was to delete emails which were older than 12 months, but nowadays there are more robust ways of retaining records.

The Chair had no questions of his own.

Mr Fenwick commented that this was a disastrous tragedy. Because this matter did not get to court, the chance to help people get justice never happened for him. He advocated for the idea of no-fault compensation as a useful tool when complex difficulties such as contaminated blood arise.