Member Article

On 13 October 2022, Shoosmiths hosted a webinar on the UK Covid-19 Inquiry (the ‘Inquiry’). The webinar took a closer look at the structure and progress of the Inquiry, alongside the commercial and legal considerations that any potential witness or party should be aware of, including the role of a Core Participant (‘CP’).

The webinar was hosted by Paul Eccles (Partner) and included talks by Alex Friston (Associate) and Charles Arrand (Partner). Shoosmiths were delighted to welcome Anne Studd KC of 5 Essex Court as a guest speaker.

An overview of the Inquiry to date

Alex Friston provided an overview of the Inquiry so far. On 28 June 2022, the Inquiry was formally established under the Inquiries Act 2005 which gave it formal status. The Prime Minister approved the Terms of Reference, which were finalised following a consultation process carried out by the Inquiry team. This process included taking views from those affected by the impacts of Covid-19.

On 21 July 2022, Baroness Heather Hallett (‘the Chair’) officially launched the Inquiry, announcing that it will be divided into modules and that applications for CP status will be determined on a module-by-module basis.

The Chair stated in her opening remarks that “The UK Covid-19 Public Inquiry was established to examine, consider and report on the UK’s preparations for and the response to the Covid-19 pandemic”.

Module 1 – the resilience and preparedness of the UK for a pandemic

Module 1 commenced with a preliminary hearing on 4 October 2022. Module 1 will examine the resilience, planning, and preparedness of the UK, by addressing the following:

• The basic characteristics and epidemiology of the virus.
• A review of the government bodies and specialists that were involved and concerned with risk management and civil emergency planning.
• The planning for a pandemic.
• A review of public health bodies.
• Any impact arising from the UK’s exit from the European Union.
• Economic planning by relevant government bodies, including how well equipped the government was to handle the pandemic.
• Planning for future pandemics.

Module 2 – examining political and administrative decision-making of the UK and devolved governments

Module 2 is set to commence with a preliminary hearing on Monday 31 October 2022. Module 2 has been split into four parts. The first part will examine the political decisions made in the UK throughout the pandemic, looking at those with direct and indirect responsibility for the process, communication, and enforcement of decision making. Parts 2A, B and C will examine the same overarching strategic issues, but from the perspective of Scotland (2A), Wales (2B) and Northern Ireland (2C). Each section will take place in their respective nation. It should be noted that the Scottish Government has committed to its own independent Inquiry, and that the UK Covid-19 Inquiry is to run parallel to, but separately from, this.

Module 3 – the impact of Covid-19, and governmental and societal responses to it

Module 3 will investigate the impact of Covid-19 and governmental and societal responses to it. It is likely that this module will cover NHS backlogs, non-Covid treatment and also Long Covid diagnosis and support.

Future modules of the Inquiry

The speakers concluded that they would expect the Inquiry to cover the below areas, as they have been recognised as the areas most affected by Covid-19:

• Vaccines and anti-viral treatment.
• The care sector.
• Government procurement and Personal Protective Equipment (PPE).
• The test and tracing system.
• Further government, business, and financial responses.
• Health inequalities.
• Education, children, and young persons.
• The impact of Covid-19 on public services and on other sectors.

Participation in the Inquiry

Charles highlighted that the Inquiry aims to make far-reaching recommendations. As a result, organisations, individuals, or businesses might want to consider participating in the Inquiry. A high participation rate will ensure the recommendations made are relevant to all the sectors impacted by Covid-19.

There are two principal routes to participation in the Inquiry: as a Core Participant (“CP”), or as a provider of evidence without CP status. Both a CP and a provider of evidence without CP status are open to applications by individuals, institutions or organisations that have a specific interest in the work of the Inquiry. The benefits of being a CP are receiving document disclosure, being represented throughout proceedings, having the ability to make legal submissions, suggesting questions to be asked of witnesses, and receiving advance notice of the Inquiry’s report. A provider of evidence without CP status does not have the same advantages as a CP and can only engage in the Inquiry through consultations arranged by the Chair.

Charles highlighted the ‘gateway’ criteria released by the Inquiry team. This should be considered for those who are looking at obtaining CP status:

• The person played, or may have played, a direct and significant role in relation to the matters to which the Inquiry relates;
• The person has a significant interest in an important aspect of the matters to which the Inquiry relates; or
• The person may be subject to explicit or significant criticism during the Inquiry proceedings or in the report, or in any interim report.

Charles addressed the key steps to take if you are considering taking part in the Inquiry:

• Decide if you wish to submit evidence to the Inquiry with CP status or not.
• Consider the short application window if you do wish to apply as a CP.
• Reach out to your trade association or umbrella organisation. Applying through these organisations can reduce the overall cost and time involved in the Inquiry.
• Start to consider the evidence you wish to bring to the Inquiry and who your witness(es) would be.
• Think about obtaining legal advice and the funding options available to you.

The possibility of civil claims

The Inquiry is not looking to make findings on liability. However, the Inquiry will make factual findings which could impact future civil claims. Anne Studd KC highlighted that the biggest issue in bringing civil claims is likely to be the difficulty in proving that the negligence alleged actually caused injury or damage to those affected.

Anne listed the key areas in which she believes claims could arise as a result of the Inquiry, some of the areas are listed below:

• Vaccine damage.
• Claims against care homes as well as the Secretary of State and/or the NHS for mass infection incidents.
• The recruitment of less well-trained staff and retired staff within the NHS and whether this led to a lower standard of care.
• Supply chain - force majeure claims.
• Mass employment claims relating to safe working practices.
• Data breaches and privacy claims.

Our advice to businesses is to start considering now if and how to get involved in the Inquiry. It is important to consider if the business is better served by being involved as a CP, or as a provider of evidence without CP status.

For businesses wishing to take part as a CP, it is important to be prepared when the short window of application opens and to apply promptly. It is important to note, that if an organisation is declined CP status in one module, it can apply again for future modules. Each module will consider different issues.

If you believe that your organisation may wish to apply for CP status, either individually or through an umbrella organisation, then we advise you to consider obtaining legal advice, which can provide you with a route to engaging directly with the Inquiry team.

 

 

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