The government has been accused of using money as a way of blocking access to justice for bereaved Covid families.
Human rights lawyer Elkan Abrahamson says the government is using punitive costs orders to stymie the ability of thousands of grieving families to fight for a public inquiry into the handling of the pandemic.
“They’re opposing everyone who’s raising these issues and saying: ‘You’re going to have to pay us a fortune in costs if you lose,’” he said.
“They’re using money as a way of blocking access to justice. That’s what it boils down to.”
Abrahamson, who is head of major inquiries at Broudie Jackson Canter law firm, is acting for Covid-19 Bereaved Families for Justice in bringing legal action against the government.
The group of about 2,500 families is launching judicial review proceedings to try to compel the government to hold a public inquiry.
But before doing so they have been forced to raise substantial sums of money to cover the legal costs they could be forced to pay the government if the action is not successful.
Abrahamson said the government had refused to waive costs when asked by the campaign, but had also declined to tell the group how much it could seek to claim.
Covid-19 Bereaved Families for Justice began fundraising and has now got enough money to continue with its bid, which is expected to progress in the near future.
A separate case has shown the significant risks of bringing such legal challenges.
Earlier this month, the government asked for costs of up to £1m in a case brought by the Good Law Project for a judicial review over the award of contracts for personal protective equipment.
The action meant the small, not-for-profit organisation, which is funded by donations from the public, could have been liable for “eye-watering” costs if it lost the case.
“We cannot bear this kind of existential risk,” said Jolyon Maugham QC, director of Good Law Project.
The group applied to the High Court for a cost capping order to restrict the legal costs of both sides, which was granted on February 24.
It had asked for a cap of £100,000 but instead the order was granted at £250,000.
“If we lose the case, we are liable to pay a quarter of a million pounds to government, as well as needing to cover our own legal costs,” said Maugham.
“Despite huge support from members of the public, generous individuals and organisations, we are still short.”
Abrahamson said one compelling reason for holding a public inquiry into the pandemic is that the option of pursuing inquest proceedings has been effectively closed off to most families in relation to Covid-19 deaths.
“The coroners are very, very reluctant to actually look into anything more,” he said. “The guidance says if there’s an individual failing you can point to that leads to someone getting Covid, maybe they could look at it, but if it’s a generic failing, you can’t look at it.”
Deaths in relation to care home failings, failure to provide PPE, failings in the 111 system and delays in lockdown all fall outside this remit.
“The chief coroner has said there will be a [public] inquiry, but there isn’t one, that’s the problem,” said Abrahamson.
His firm is dealing with about 150 clients who want inquests to be held into the deaths of their loved ones.
But only five or six of these have actually moved forward to pre-inquest hearings, Abrahamson said.
A government spokesperson said: “Every death from this virus is a tragedy and our sympathies are with everyone who has lost loved ones.
“We have a responsibility to the taxpayer to recover legal costs when they are incurred and a court orders that they must be paid.
“It is wrong to suggest that legal costs have been inflated. All costs to date have been properly incurred.”