Member Article

The COVID-19 Public Inquiry presents a key growth area for litigation in the medium to long term. Here, Matthew MacLachlan considers key litigation risks, potential parties and emerging themes.

Behind each of the COVID-19 Inquiry’s published draft terms of reference lies the question: on which will the dust of litigation settle? Potential claimants are already staking claims on key issues the inquiry will likely examine, some of which, such as business interruption insurance, have already seen litigation up to the Supreme Court.

What are the key litigation risks? Factors such as the prospect of new bases for claims and new approaches to recovery will be determinative, with knock-on effects for matters which fuel litigation like limitation periods and litigation funding. But whilst much of the detail of how the inquiry will be set up and operate is still shrouded in uncertainty, the prospect of it giving rise to litigation in the medium to long term seems clear.

Whilst the inquiry will not give findings of liability, its conclusions on issues of fact, and any recommendations, will have considerable persuasive weight in any subsequent litigation or petitions for legislative change.

Below we set out some thoughts on the scope of the inquiry, potential parties to litigation and emerging themes.

Scope

The wide range of issues under examination reflects how far-reaching the consequences of the pandemic have been (and in areas continue to be). Interested parties have started to publicly petition the government on such issues as product liability and alleged vaccine harm with an eye on potential collective actions.

The scope for liability on such issues is not yet clear. For example, for alleged vaccine harm, the government carved out much of manufacturers’ liability through legislation. But these ‘indemnities’ are yet to be tested in proceedings and firms are petitioning for payments following statutory liability to be increased.

Class actions themselves have received new scrutiny in the English litigation sphere. Trends are emerging which may pave the way to considerably broaden the scope of them, perhaps to replicate US style ‘opt out’ actions. Only recently did the Supreme Court consider whether US style class actions should be permissible in data litigation claims, giving a widely publicised judgment which did not entirely exclude such actions, albeit holding they were unsuitable on the particular facts.

Another widely known example of pandemic litigation was the Supreme Court’s business interruption insurance decision which provided clarity as to when policies responded to COVID-19 claims. Here, the concerned class were not individuals but insurers and businesses affected by the pandemic, with the judgment based on the scrutiny of a selection of similar policies across the market.

Just these two areas – alleged vaccine harm and the business interruption insurance – coupled with the growing interest of claimant law firms in class actions and alternative funding models – show the breadth of potential claims and their possible foundations: not just positive actions arising from the pandemic (such as the development or administration of a vaccine) but also decisions (such as policy wordings) which predated it.

Participants

Questions as to prospective defendants are also beginning to be asked. For product liability actions, for example, is recourse to be taken against the government or manufacturers or both? And will there be any knock-on effects for actions based on related issues, such as against distributors and storage providers? – which demonstrate how easily mass litigation may follow even discrete issues.

If the inquiry takes a ‘modular’ form (as is expected), where topics are sufficiently discrete to allow different strands of the Inquiry to be split and run separately from one another, the evidence heard in just one module may influence (and to a degree determine) a tranche of potential defendants, noting that statute expressly states “An inquiry panel is not to rule on, and has no power to determine, any person's civil or criminal liability” but “is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes” (s. 2 , Inquiries Act 2005).

But not all businesses will be affected by all issues. Our involvement in the Croydon tram inquiry, for example, showed how calls for evidence are often limited to specific issues, with interested organisations taking a ‘watching brief’ on remaining issues; whilst in the Grenfell inquiry we have observed how some organisations have understandably focussed on mitigating the possibility and impact of a range of findings (and possible future litigation) across phases.

The COVID-19 Inquiry is yet to release its protocol for core participants – being those who will have an active involvement in it. Vaccine manufacturers are obvious candidates in the private sector, though interest groups, perhaps doctor and patient unions, distributors, insurers and even charities, could also seek core participant status. 

Core participants are not the end of the story – all interested parties should be able to provide evidence as a witness, reflected by the fact the Inquiry invited public consultation on its draft terms.

Bases of liability

Throughout the pandemic, organisations have been alert to familiar bases of complaint arising, for example, from established statutory and contractual liabilities. Yet these have often touched on novel areas of law, particularly where the need for urgency called for exceptional business practices (see, for example, our article on force majeure). Reviewing familiar liabilities remains a key concern for businesses in a wide variety of sectors, and the scope for claims under any generic basis remains wide.

Yet the unique pressures of the pandemic may also lead to claims on less familiar bases. Where, for example, claimant firms are petitioning for greater liability arising from statutory claims (alleged vaccine harm, for example, see above), other organisations have faced liability from within. In the employment sphere, for example, claims by whistle-blowers who were dismissed for highlighting that staff pay cuts during the pandemic were unlawful have recently been upheld, leaving employers open to potentially unlimited damages awards.

There is also the question of whether claims will emerge in the data litigation sphere – particularly over the wide provision by many businesses of health (or ‘special category’) data relating to the public, employees and third parties. It is yet unclear but is foreseeable that the next round of mass data litigation claims could be founded on practices arising from the pandemic. What may be holding back such claims is the sense of having to act on an emergency basis for the greater good which underpinned many acts of the pandemic itself. It is yet to be seen whether these or similar societal factors will deter formal legal claims, or ultimately whether courts will be sympathetic owing to the circumstances.

The findings of the Inquiry’s ‘modules’ will not just influence existing obligations therefore, but may well result in changes to existing legislation and recommendations may contemplate new bases for liability, particularly in areas where public harm attracts greater publicity.

Recoverable losses

Other Inquiries highlight that a wide range of losses may be recoverable. In the Independent Inquiry into Child Sexual Abuse (IICSA), for example, conclusions ranged from offenders being punished to higher penalties in civil claims and reputational sanctions such as “apologies, explanations and assurances of non-recurrence”.

It may be reasonable to anticipate findings which consider the appropriateness of increased damages awards for particular issues, and it may even be reasonable to anticipate changes to the Civil Procedure Rules (the CPRs) governing how claims will be conducted – the IICSA, for example, recommended the CPRs be amended to ensure judges consider additional protections for claimants.

Other issues

Other issues relate to:

• Limitation periods: The scale of the inquiry indicates it may take many years before even initial findings are published, which may result in some claims expiring owing to limitation periods. Whilst findings for smaller ‘modules’ may be decided earlier in the process (particularly if the inquiry issues interim reports), the risk of losing claims may see a rise in early test cases, requests for standstill agreements or speculative claims to reserve the rights of claimants.
  
  The approach adopted in other inquiries may be significant. The IICSA, for example, examined the six-year limitation period in question (on the basis relevant claims were premised on deliberate acts), but considered the law had changed by case law in 2008 such that an extendable three-year limitation period applied, running from either the date when the relevant injury occurred or the date of knowledge of the individual claimant. In all cases involving children, the applicable limitation period was found not start to run until the claimant reached adulthood. Despite these changes, the IICSA heard that one of the most challenging legal issues for abuse claims remained that the limitation period operated “unfairly” and recommended that it “should only be used in exceptional circumstances”. Depending on the scale of loss, similar recommendations surrounding relevant limitation periods may well emerge from this Inquiry.

• Funding: bespoke funding models (such as After the Event (ATE) insurance) are often used to back mass litigation, in many cases fuelling cases which may not otherwise be viable. Such funding models increase litigation risk for defendant organisations by increasing the financial consequences if the organisation is unsuccessful. Often the risk of having to pay for claimants’ premiums is leveraged to achieve higher private settlements.
  
  Aside from funding for legal assistance for core participants, for others the role of ATE insurers may well impact the litigation landscape. Similar evolutions to funding models as those which are contemplated following other recent class actions (such as Lloyd v Google) may well follow from the findings of the inquiry. The prospect of crowdfunding for litigation, particularly that with mass appeal or concerning emotive topics, must not be discounted, especially considering the role crowdfunding played in the spate of Brexit litigation. Already we are seeing similar campaigns being established, for example those petitioning for more help to be given for those bereaved from COVID-19. 

Conclusion

Litigation may arise from any of the current draft terms of reference for the inquiry.

Recent trends indicate defendant organisations may be exposed not just by existing obligations but also from new bases of claim, particularly from legislative changes or revised guidance following the Inquiry’s findings. Defendant organisations face the risk of higher potential damages awards if some of the recent campaigns are successful and/or aggressive claims are leveraged by bespoke funding models, particularly in areas which may be litigated on a mass scale.

Prospective defendants’ active participation in the inquiry will pay dividends when key issues come to be litigated. These early stages provide excellent opportunities to explore the territory of potential claims, access and assess the relevant evidence at an early stage, assess potential litigation risks and possibly mitigate them. The prospect of influencing the Inquiry as the scope of its terms of reference evolve, together with the opportunity to manage the optics of any reputational impacts against potentially adverse findings, are key areas where prospective defendant organisations will benefit.

Early engagement will also help organisations realise and frame areas of particular loss (whether existing or novel) and the scope for possible recourse. Keeping track of the key themes amidst the current uncertainty is important to help define avenues of recovery – as the building momentum behind product liability cases and business interruption seems to show. Organisations’ positioning at these early stages may well help to decide the focus.

 

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