Hepatitis campaigners must risk costs

Judge refuses to protect relatives seeking inquiry from risk of failure

News, 13 December 2005

Relatives of those who contracted hepatitis C through infected blood transfusions in the 1980s must bear the financial risk if they pursue legal proceedings to secure a public inquiry, a judge has ruled.

Lord Glennie in the Court of Session ruled that widows Jean Black and Mary McArthur, and bereaved daughter Roseleen Kennedy, had failed to make out a financial case why they should be exempted from the normal rule that the loser pays.

The three, seeking a judicial review of the Lord Advocate's failure to order a fatal accident inquiry and the Executive's refusal to hold a public inquiry, had argued that their action was in the public interest.

Lord Glennie rejeted an argument for the Executive that the court had no power to make an order in the terms sought, holding that the matter came within the rule that expenses are a matter for the court's discretion. However although he acepted the importance of the case, he ruled that the petitioners had failed to justify the order on financial grounds.

He commented: "The court is being asked to step in and assist the petitioners in a case where their personal means are above the limit set for the grant of legal aid. It is not easy to see why individuals in those circumstances should be regarded as being of 'limited means'." He described as "thin" the financial information put before him and noted that the Haemophilia Society now appreared to be willing to put £53,000 towards the litigation.

"Accordingly, I am not satisfied that this is an appropriate case to exercise the discretion to make a protective order for expenses."

Lord Glennie's opinion can be read at http://www.scotcourts.gov.uk/opinions/CSOH166.html .