Member Article

Underpinning the litigation anticipated to follow the COVID-19 Inquiry is the feeling that it is still too early for claims on key matters to be issued. A recent theme of claimant firms has been to agree deadlines with counterparties where limitation issues arise, or to put counterparties on notice of claims but wait for evidence to be given to the Inquiry and any findings before taking claims forward. 

Where litigation has been issued, however, claims have sought to advance matters that are of wide concern. The High Court, for example, recently considered crowdfunded claims by the families of two care home residents who died of COVID-19 in the first wave of the pandemic. The families believed the Government’s guidance on the asymptomatic transmission of COVID-19 had contributed to many care home fatalities. In turn, they successfully obtained declarations from the court that the policy set out in two Government guidance documents was: 

“irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days” (see R (Gardner and Harris) v Secretary of State for Health and Social Care, NHS England and Public Health England [2022] EWHC 967 (Admin) (‘Gardner’), para. 298).

Despite this, claims that the Government’s failure to properly protect care home residents breached Art. 2 (right to life) of the European Convention on Human Rights failed, and the claimants in Gardner stopped short of seeking compensation. The judgment therefore left claimants with a relatively narrow declaration that specific documents were unlawful, which may not easily give rise to viable follow-on claims in negligence, for example, in which damages could be sought.

Nevertheless, declarations serve as an authoritative statement by the court about a legal issue. Post-Gardner, claimant firms are looking to issue compensation claims pending the Inquiry’s review of care home evidence and findings, which echoes the comments of Lord Justice Bean in the claim: 

“This is an important and legitimate claim, but we must emphasise at the outset what it is and what it is not. It is not an inquest concerning the deaths […] alone. On the other hand, the case is not a public inquiry but a judicial review. There has been no oral evidence. Evidence of opinion about the actions and decisions of the defendants is not admissible” (para. 2).

That evidence – and particularly the reasons for why unlawful policies were produced at the height of the pandemic – may well be scrutinised by the Inquiry and have key implications by filling in the gaps needed to progress claims. Prospective defendants will do well to engage at the current stages of the Inquiry to air their own perspectives, provide key evidence and help frame findings to mitigate litigation risk. 

Other decisions

Other recent judicial review actions have concerned matters such as whether the Government’s lateral flow test procurement exercise was lawful. The High Court recently held that the Government’s decision to award public procurement contracts for the development and supply of antibody lateral flow tests to one company in the UK during the early stages of the pandemic was lawful despite the decision being allegedly in breach of the Government’s procurement policies and allegedly being a conflict of interest (see R. (on the application of Good Law Project Ltd) v Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC)). In making its decision, the court referred to factors such as the urgency of the need to respond to the pandemic, worldwide demand for tests and that the contracts did not amount to state aid as the Department of Health and Social Care had been acting as an economic operator.

But decisions such as these which could have wide-ranging impacts do not just derive from the High Court. In a recent ruling, the senior coroner for South Wales Central held that it was “more likely than not” that two nurses were exposed to COVID-19 while at work and so formally recognised COVID-19 as an industrial disease, potentially leaving liability open for employers and insurers if the hurdles for negligence claims, for example, can be made out on specific facts.

Group litigation

Of equal interest is the prospect that claimants will proceed on the basis of mass group litigation. We have seen attempts to bring group litigation rise to the Supreme Court in other areas recently, for example for data breach claims, but shortly thousands of students are to air arguments before the High Court which will determine whether their own group action can proceed. The students are seeking a Group Litigation Order which are notoriously expensive and difficult to administer (on both sides) on account of alleged breaches of contract, including that they received fewer weeks’ teaching than were provided and that degree courses were transferred online – the price of which, the students argue, are much cheaper than the traditional courses for which they paid. The hearing date is expected to be announced shortly. As is common for group litigation, the students are funded by insurance and conditional fee arrangements with a per student contribution capped at 35% of any compensation awarded. 

Looking ahead

Prospective defendant organisations will do well to keep abreast of the evidence given to the COVID-19 Inquiry and the litigation arising from related matters. Absent published scrutiny of evidence or interim findings from the Inquiry, a key focus for businesses will be to maintain a watching brief until the Inquiry considers matters of importance to the private sector. The evidence against the Government in the first three modules of the Inquiry is instructive as it goes to the heart of political and administrative decision-making but it also frames where liabilities may lie, and the recent cases indicate just how many organisations may face questions over their handling of the pandemic.

We have previously shown how lessons from previous Inquiries have been far-reaching, and have involved seismic changes to livelihoods and industries. The recent litigation trends indicate the COVID-19 Inquiry will be no different and, considering how widely the pandemic affected businesses and individuals, findings may well be made on a scale not seen before. Already we are seeing rising threats of litigation for issues such as COVID-19 vaccine harm, for example, which appear to follow in the footsteps of reports that evidence given to the Infected Blood Inquiry is being given to prosecutors. The latest trends show just how wide-ranging even initial claims are, and the breadth of prospective defendants which already include universities, government departments, employers, contractors and distributors.

The next stage of the Inquiry will likely see an increase in applications for Core Participant status owing to the focus away from political decision-making to the effects of such decisions, including matters such as how healthcare systems responded to the pandemic (Module 3), vaccines and therapeutics, the care sector and procurement exercises. Core Participants to date include representatives from the charity, healthcare, public and trade union sectors, all of which are poised to bring or face claims once the issues have been fully aired. Early engagement is pivotal for prospective defendants as their evidence may prove to be crucial in mitigating adverse findings and potential litigation.

 

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