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Haemophiliacs must wait until after election for compensation decision

27 April 2010

A High Court judge has extended the deadline for an appeal against his judgment on compensation for haemophiliacs and others infected by contaminated blood products to allow a new government to make the decision.

Several thousand people, most of them haemophiliacs, were infected with HIV and/or hepatitis during the 1970s and 1980s before the NHS introduced heat treating for blood products.

Mr Justice Holman quashed a government decision not to accept the recommendation of independent inquiry that at least as much compensation should be paid to UK victims as has been paid by a special tribunal in the Republic of lreland.

Holman J refused the government leave to appeal, but extended the deadline for an appeal direct to the Court of Appeal until the end of June so a new government could decide what to do.

Delivering judgment in R (on the application of March) v Secretary of State for Health [2010] EWHC 765, he said the infection of haemophiliacs through contaminated blood products had been described as the worst treatment disaster in the history of the NHS.

He said the claimant, who was infected with both hepatitis and HIV, was one of an estimated 2,700 survivors.

Lord Archer of Sandwell, a former solicitor general, chaired an inquiry into the contamination, and published his report in February 2009.

It recommended that compensation should be provided for victims and carers and that payments should be “at least the equivalent” of those payable in Ireland.

In its response, published in May 2009, the government said it would double annual payments to victims from £6,400 per annum to £12,800.

Holman J said the Department of Health had estimated that this would cost £3.8m a year, compared to a total cost of at least £3bn should the government adopt a system similar to that in Ireland.

He said the claimants argued that statements made last year by Gillian Merron, minister of state at the Department of Health, were based on a misunderstanding of the Irish scheme, particularly the idea that the Irish government had decided to make full payments because of “judicial findings of fault”.

“The truth, says the claimant, is that the Irish government decided before there was any finding of fault to make payments at a full, compensatory level, and that their decision to do so was (and remains) based on compassion, not fault,” he said.

Mr Justice Holman said that the Irish scheme was “firmly ex gratia” and the argument that compensation was paid because the authorities were found to be in breach was wrong.

As a result he quashed the government’s decision not to accept the Archer report’s recommendation that full compensation should be paid.

“I wish to make absolutely clear that the allocation of resources is entirely a matter for the government,” Holman J added.

“They have said, in effect, that they cannot afford to pay more; and that is entirely a matter for them, as to which I neither express, nor have, any opinion or comment whatsoever.”

Michael Vian Clark, a non-practising barrister at Michelmores in Exeter, acted for March. He said that Holman J’s decision to extend the deadline would give the new government time to consider the issue seriously.

“There is an independent tribunal in Ireland which assesses compensation on the basis of need in the same way as other civil damages claims,” he said.

“The government here has produced no evidence to back up its view.”

A spokeswoman for the Department of Health said the department was aware of the court’s decision and “will now consider the position”.

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