4. The hiv Haemophiliac Litigation and the Disclosure of Documents

In my general discussion of the issue of breach of duty in negligence, I emphasised the importance in the English context of disclosure of documents and contrasted it to the mechanisms for obtaining documents in the French civil process.¹⁷⁷ Here, I wish to draw attention to an important qualification on the general scheme which I previously described, potentially significant for claims against public authorities in respect of product safety, known as ‘public interest immunity’. This special rule played a central part in the English litigation brought by haemophiliac recipients of HIV-infected blood against a range of public bodies whose negligence they alleged was responsible for their harm, for soon after disclosure was ordered against the Department of Health, the government (though a new government) agreed to a settlement.¹⁷⁸ This accounts for the absence of any civil decision determining liability for the provision of HIV-infected blood to haemophiliacs, in very striking contrast to the position in France.¹⁷⁹

The HIV haemophiliac litigation would have led to a spectacularly complex trial estimated to last six months:¹⁸⁰ 962 haemophiliacs (or their dependants) claimed (p.357) damages in respect of harm suffered from their infection by HIV from Factor VIII blood products supplied to them under the NHS in the course of the 1980s. Their claims were directed against central regulatory bodies (the Department of Health, the statutory licensing body for blood products, and the CSM, known collectively as the ‘central defendants’) and 220 regional and local health authorities and special bodies, such as the Central Blood Laboratories Authority.¹⁸¹ They claimed damages for breach of statutory duty and in the tort of negligence, claiming (inter alia¹⁸²) that the failure of the central defendants to achieve self-sufficiency in blood products for England and Wales was negligent as it caused many haemophiliac patients to be treated with Factor VIII concentrate imported from the USA which was infected with HIV; that the Department knew or should have known of the risk to the plaintiffs from this imported concentrate; and that practical steps could have been taken to eliminate or reduce this risk.¹⁸³

While the central defendants had disclosed a very large number of documents relating to the plaintiffs’ claims, the Minister of Health supplied a list of some 600 documents for which public interest immunity was claimed, that is, documents which would pass the applicable test of relevance to the facts on which the plaintiffs relied but which the Minister refused to disclose on the ground that it was ‘necessary for the proper functioning of the public service that these documents should, except in the most exceptional circumstances, be withheld on the grounds of public interest’.¹⁸⁴ The documents included submissions to ministers, communications between civil servants and position papers which related to decisions described by the Minister as issues of policy, notably as to the adoption of a policy of self-sufficiency in blood products and the resources to be allocated to the provision of blood products more generally.¹⁸⁵

The plaintiffs applied to the court for an order that the Minister should nonetheless produce the documents in question. The Court of Appeal noted that while it was entirely proper for the Department in the circumstances to raise the issue of public interest immunity against disclosure of these documents,¹⁸⁶ it was for the court to determine whether the documents should be produced¹⁸⁷ and ‘[t]he task of the court is properly to balance the public interest in preserving the immunity, on the one hand, and the public interest in the fair trial of the proceedings, on the other’.¹⁸⁸ In coming to its view, a court should be satisfied that the documents in question are very likely to contain material which would give substantial support to his contention on an issue so (p.358) that without them he might be deprived of the means of proper presentation of his case.¹⁸⁹

At first instance, Rougier J considered that he should refuse to order the production of the documents if he was wholly satisfied that the plaintiffs had as a matter of law no arguable case against the central defendants¹⁹⁰ and in this way the question whether these defendants owed a duty of care in the tort of negligence on the facts as alleged became relevant to the question of the availability of disclosure. The Court of Appeal agreed with this basic approach, being prepared to hold that there was no valid cause of action for these limited purposes where this was sufficiently clear, but not where (as in the case before it) a case raises novel questions of public importance, where the decisions in law are better made after trial.¹⁹¹ For in the Court of Appeal’s view, while it might be rare for a case for negligence to be proved against the Department of Health in respect of the exercise of its general functions in relation to the NHS, this was not enough to deny the possibility in law for the purposes of the courts decision as to the disclosure of documents.¹⁹² As Bingham LJ observed, given the avoidable nature of the tragedy which had afflicted the plaintiffs, if their allegations of fact could be made out, ‘the law might arguably be thought defective if it did not afford redress’.¹⁹³ In the result, the plaintiffs had a ‘good arguable claim’ in common law negligence.¹⁹⁴

The Court of Appeal then looked at the nature of the plaintiffs’ allegations in order to help determine which documents should be disclosed. According to the plaintiffs, the central defendants had made ‘grave errors of judgment’. Moreover, if the evidence was later found to support the plaintiffs’ claims, the court considered that the defendants’ failure to act upon their knowledge of the risk to the plaintiffs was likely to have been

the result of failure at some level within the department to pass that available information to those who were required to make the decisions. If that is not in fact the explanation, but it is proved that the information as to the nature and gravity of the risk, and of the steps available to eliminate or reduce it, was supplied to those who were required to make the decisions, then…the plaintiffs would have a prima facie case for asserting that the decisions were such that no reasonable or responsible person could properly make them.¹⁹⁵

In this way, the Court of Appeal was clearly prepared to countenance a claim against a public body responsible for making decisions on product safety in the tort of negligence, subject to a criterion of Wednesbury unreasonableness.¹⁹⁶

Given this view of the hypothetical facts, the court held that it was highly likely that the documents in respect of which public interest immunity had been claimed would give substantial support to the plaintiffs’ contentions, as they related to the explanation of how the department had failed to protect the plaintiffs from the risk of infection from contaminated blood.¹⁹⁷ The Court of Appeal did not consider the need for a fair trial which this represented to be outweighed in the circumstances (p.359) either by the need for ‘effective, candid and uninhibited advice to ministers’ nor by any ‘public interest in protecting from possible critics the inner workings of government in the formulation of important government policy’.¹⁹⁸ For this reason the Court of Appeal ordered the production of all those documents in the Minister’s certificate, apart from some whose substantive content would be otherwise available (some 204 documents in total),¹⁹⁹ subject to their prior inspection by the judge to whom the trial of the case had been allotted so as to apply the criterion for production enunciated by the Court of Appeal.²⁰⁰

The Court of Appeal’s approach and decision on public interest immunity fits well into the general trend both in the courts and in government itself away from the withdrawal of documents from the civil process on this ground, this trend being encouraged by the implications of article 6 of the European Convention and the Human Rights Act.²⁰¹ Moreover, while the more restrictive general criteria for disclosure of documents introduced by the Civil Procedure Rules could be seen as pulling against this liberalising tendency in relation to public interest immunity as they encourage the reduction of documentation principally in the interest of cost, under ‘standard disclosure’ a party must still disclose all documents which adversely affect his own case or which support or adversely affect another party’s case, and while a defendant need only undertake a ‘reasonable search’ for such documents, the criteria of reasonableness would not suggest that many of the documents in contention in the HIV Haemophiliac Litigation would fall outside this test.²⁰² This English law governing the disclosure of documents whose retention is allegedly in the public interest contrasts with the approach of the Conseil d’Etat to the production of documents, which does not recognise any system by which a defendant claims an ‘immunity’ from revealing documents relevant to a claimant’s case.²⁰³

The sequel to the decision of the Court of Appeal in the HIV Haemophiliac Litigation on 20 September 1990 on disclosure was an extra-judicial one. While in late October, the then Prime Minister, Margaret Thatcher, was reported as denying any more funds for compensation of the haemophiliac victims of HIV beyond the £34 million ex gratia already pledged,²⁰⁴ after John Major became Prime Minister on 28 November 1990, the government announced that it had agreed to settle the haemophiliacs’ claims by making available £42 million for their benefit to the Macfarlane Trust, a fund set up by the government in 1987 with a grant of £10 million,²⁰⁵ and by paying their costs (already estimated at some £2 million), though it still denied any negligence.²⁰⁶ While for some this reflected the government’s ‘basic humanitarian instinct’,²⁰⁷ for others it reflected its wish to avoid disclosure of sensitive information relating to the importation of blood products from the US which would (p.360) have revealed the nature of the decisions made.²⁰⁸ While at first the government refused to make any money available to compensate those who had contracted HIV by transfusion with infected blood who were not haemophiliac,²⁰⁹ in February 1992 it made some £10 to £12 million available for this purpose. In the result, the haemophiliacs’ civil litigation led to the creation of a special fund for the compensation of certain victims of blood products, rather than either damages in the ordinary sense or any judicial decision adjudicating on the alleged negligence of the public defendants.