The HIV Haemophilia Litigation [1990] 41 BMLR 171, [1990] 140 NLJR 1349 (CA), [1989] E N. 2111, also known as AMcG002, and HHL, was a legal claim by 962 plaintiffs, mainly haemophiliacs (but also their wives, partners and children), who were infected with HIV as a result of having been treated with blood products in the late 1970s and early 1980s. The first central defendants were the then Department of Health, with other defendants being the Licensing Authority of the time, (MCA), the CSM (the Committee on the Safety of Medicines), the CBLA (Central Blood Laboratories Authority), and the regional health authorities of England and Wales. In total, there were 220 defendants in the action. The litigation commenced around April 1989 and by 7 July 1989, at least 300 plaintiffs had joined the action. Within four months another 300 haemophiliacs had joined the action, however, by this time, (November 1989) 163 haemophiliacs had already developed full-blown AIDS and 107 had died. There was an initial deadline of 2 February 1990 imposed, but this was extended in order to permit 200 haemophiliac children to sign up to the action.
Principal grounds The plaintiff's principal allegations were that the UK government had been negligent in failing to become sufficient as a country in the supply of blood products at an earlier point, and in delaying the implementation of heat-treatment of clotting factors in order to inactivate HIV. It was further alleged that the defendants did not respond correctly to the AIDS crisis, specifically, in not reacting with urgency to move to banning imported blood products which were derived from paid donors. Another significant ground was breach of duty as provided for in statute, for example, under the National Health Service Act 1977.
Discovery and public interest immunity On 20 September 1990, the Court of Appeal heard an appeal concerning discovery where an order of 31 July 1990 had been made by Mr Justice Rougier that required the first central defendant, the Department of Health, to surrender some, but not all of 600 files of historic papers spanning 1972 to 1986, on which they were asserting public interest immunity (PII). The appeal had been brought by the plaintiffs and was being considered in conjunction with a cross-appeal by the defendants. The documents being withheld under public interest fell into a number of categories: submissions and draft submissions to ministers, policy documents, exchanges with ministers, documents revealing the process by which policy decisions were arrived at, documents showing exchanges between senior officials, briefings to ministers, and position papers on the formulation of future policy prepared by civil servants. Part IV of the Canadian inquiry report by Justice Horace Krever provides a more specific breakdown of the subject matter of the documents which were under consideration during the appeal: documents relating to the drive for self-sufficiency, the allocation of resources, documents on the laboratory (BPL) where blood products were manufactured, on the NBTS, on the screening of donors, on steps to limit the infection with hepatitis, and on heat-treatment of blood products.
The three appellate judges found for the plaintiffs and ordered the PII documents to be disclosed, overturning the ruling of Rougier J of 31 July 1990 and at the same time, the cross-appeal by the Department of Health was dismissed. Lord Justice Bingham recorded in the judgment that he felt "the tragedy was avoidable in the sense that, had different measures been taken in the 1970s and early 1980s, it could, at least in large measure, have been prevented."
Out-of-court settlement On 26 June 1990, Mr Justice Ognall took the rare initiative of issuing a handwritten note imploring the parties to give anxious consideration to settling the action out of court. He stressed the moral obligation and duty that fell on the UK government toward the HIV-infected haemophiliacs. However, the judge's plea was resisted for several months by the Health Secretary, Mr Kenneth Clarke, and was still being rebutted on 16 October 1990. The Chief Medical Officer, Donald Acheson, was also keen for the government to settle the action. The haemophiliac plaintiffs were developing AIDS and 130 infected haemophiliacs had already died by 9 November 1990. The next month, the action was settled out-of-court by which time the number of plaintiffs on the roll of names had risen to 1,217. It was reported on 4 February 2022 in the i newspaper that a Department of Health memo, unearthed at the National Archives, revealed that senior government officials held the belief in 1995 that the government would have been found negligent and lost the HIV Haemophilia Litigation had the case gone to full trial.
… excerpt ends here. Continue reading the full article.
