12 July 2022: Francis - A

Day 2 of the evidence of Sir Robert Francis QC began with a request by Counsel for a longer break to receive and collate questions from core participants, perhaps at lunchtime. Obviously, the anticipated interest in this witness and his evidence was correct, and so the desire to seek clarity and raise issues is much greater than for any other witness.

Counsel began the actual questioning with the guidelines related to the “Simmons uplift” of 10%, as left unfinished the previous day. The 10% is designed to cover the legal fees due to lawyers’ work involved in achieving the compensation made in a court. Sir Robert did not see this applying to his model. There followed a discussion about how lawyers were paid, for example, since the ending of Legal Aid for personal injuries claims ended in the 1990s. The US system is based on a percentage of what was achieved going to the lawyers. The UK often had a no-win-no-fee approach, with the 10% uplift not being taken from the claimant’s payment but payable from the other side to cover those legal costs. This topic in relation to the Compensation Framework was expected to be re-visited.

The questioning reverted to the details of the Report as written by Sir Robert. An annual amount of £10,000, on top of the regular payments linked to the median wage, was recommended to cover additional costs not directly covered by the five main heads of award he had listed. Rather than a person having to provide quotes, receipts, etc. it was seen as better to use the “broad brush” approach of this lump-sum to cover these additional needs with financial implications. While it might be a rough way of doing things, it would save a lot of stress and effort by claimants, including their concerns about going with a begging bowls, and would be a significant saving of time and effort to those administering the scheme.

Returning to Recommendation 8, there was a summary of the infected persons’ Heads of Award. These included; Injury Impact Award (lump sum), Social Impact Award (lump sum), Autonomy Award (lump sum), Care Award (lump sum for past care, periodic for ongoing care), Financial Loss Award (lump-sum for past loss of earnings etc., and future losses which could be a lump-sum or periodic and would be connected to the ongoing scheme support payments).

For Affected persons, Recommendation 9 was referred to again. Firstly, for the Injury Impact Award for affected people, the witness did not hear much during his consultation processes about physical injuries to carers, but a lot about mental health consequences. Payments in this regard should not require a specific mental health diagnosis to designate eligibility. He pointed out the generally lower levels of compensation to those who were not the person actually injured, in this case the infected. The view was that to have a higher sum for affected people within this model would go against the norm for common law. He thought that if there was no real difference between the infected and affected, that would also look wrong. The Social Impact Award issues for affected people would not be able to be claimed in civil law, but he felt it was justified in this case. The subjective allocation for affected people would be at a level of 50% of the amount awarded to the infected person. He recognised how this could be a matter for debate.

The Family Care Award was a category only applicable to the affected person, separate from the care elements related to the infected. This would be a “belt and braces” approach to ensure the scheme covered care costs overall. Counsel pointed out the lack of a Financial Award to affected people for their loss of earnings. The witness cited common law principles which did not allow for any recognition of the earnings lost which might have been at a high level. The view generally is that giving up work to become a carer is seen as a voluntary decision, plus if the salary was high enough then it was considered that the care could be paid for out of that higher salary. The witness recognised how harsh this all sounds, but that was the fact of how the law operated in this area. Counsel sought to point out factors such as the stigma suffered by carers and affected people generally, and the related difficulties in securing care, and so the affected person really had no choice but to stop working. The concern in common law seems to be related to being interested in making sure the care components happen as close to the actually injured (infected) person as possible and not to other people. (No reference was made to the dire state of the care sector in this country.)

The witness acknowledged the sense of “we are all in this together” among the people who spoke to him and sent written submissions. It highlighted their desire to see everyone receiving a fair and sufficient care amount for losses, regardless of whether or not someone had given up a high paying job or not. This had covered cases when the person cared for was still alive. Things changed when the person cared for has died. It should still be the case that the award categories are claimed and go into the estate of the deceased person. There are issues with these situations, including how to distribute estate monies between those in a family who might have provided varying levels of care. There is also an element related to how much money and services the deceased person would have provided to the affected person as a dependent. These can be complex to work out in court environments. On the matter of the current support schemes, the witness saw the need for the support payments to continue to a bereaved person who was eligible, in the same way he recommended they continue to living infected people. This continuation to, for example, widows is surely a significant and very welcome element of the model.

On Recommendation 10, there was not much more than a brief review of what it included.

On Recommendation 11, this covers issues such as people not having to sign a waiver. The witness alluded again to the 9/11 case where, if the amounts are sufficiently large, then people would be far less likely to want to continue with litigation, so it would become a non-issue. (This seems to assume that people are only interested in the money side of justice, but there are some who might still want their day in court so the clinician (or whoever it might be) are forced to face up to and account for what they did.) This Recommendation also includes allowing for courts, if someone does go to court, to take into account any money already achieved by the new compensation scheme.

On Recommendation 12, it was felt this had largely been covered. These amounts of compensation would be seen as “final”. Sir Brian highlighted the possibility of provisional damages being required, for example, if a person with HCV who had not developed cirrhosis, and this was the bases for their compensation settlement, but later in their life they did develop cirrhosis. Sir Robert considered some options for dealing with this, including making a final award which included an element to account for the possibility of a non-cirrhotic person becoming cirrhotic. He recalled the strong desire he recognised from people to achieve a final award rather than have reason to keep going back when considered necessary. The Chair raised the prospect of the strong view not necessarily being sufficiently inclusive, so a flexible approach could be the best way to design things. Sir Robert countered by mentioning the possibility of the scheme being in existence for a long time due to the eligibility of surviving affected people. If it was not final, people would always be being reviewed related to their eligibility. This matter, beyond being a distinct legal argument, seems to be difficult to pin down as to what is best for people. There is no obvious right or wrong.