Timely reminder for potential Covid-19 Inquiry litigants

In a timely reminder to potential participants to the Covid-19 Inquiry, the recommendations of another Inquiry show just how far-reaching and immediate findings can be.

Under section 2 of the Inquiries Act 2005, an inquiry panel 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. In keeping with this principle, by a recent interim report, the Infected Blood Inquiry recommended interim payments of at least £100,000 should be made "without delay" to victims and bereaved partners.

This traces a theme of Inquiries making pragmatic recommendations in the interests of justice and may pave the way for how the Covid-19 Inquiry will respond to some of the areas of potential litigation highlighted by our previous article. Potential litigants include those seeking recourse against a wide range of defendant organisations or insurers following issues as wide-ranging as vaccine harm (which led to the Terms of Reference being amended to include review of “the development, delivery and impact of therapeutics and vaccines”), business interruption and data handling. But recommendations for immediate interim liabilities may lead to claims on other less familiar bases particularly where urgency in the pandemic called for exceptional business practices. Recent trends suggest that liability may follow not only emergency decisions (such as those surrounding the administration of a vaccine) but also those which predated the pandemic (such as contractual arrangements and policy wordings).

Previously, we highlighted the importance of engaging early to mitigate litigation risk. Now, the Covid-19 Inquiry has released preliminary details of the first three modules – the preparedness of the UK for the pandemic (Module 1), UK government decision making (Module 2) and the impact on healthcare systems (Module 3) – and with prompt deadlines for participants to apply to become Core Participants (for example, by 16 August 2022 for Module 1).

Whilst the Inquiry may take years, it has pledged to deliver interim reports with analysis, findings and recommendations whilst investigations are ongoing so that key lessons are learned quickly. Litigation could therefore quickly follow interim recommendations, especially if they follow some of the themes of other recent Inquiries, such as those of the Infected Blood Inquiry, where considerable liabilities have been established in relatively short order.