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Last year I wrote about the many and varied legal consequences of the pandemic.

At the time, I considered three categories of potential claims which may arise out of the pandemic. Firstly, there may be claims arising out of the decision by the Scottish Government/NHS to relocate thousands of elderly hospital patients to nearby nursing homes without testing them for Covid; secondly, the way in which some hospital patients, particularly those in ICU, were treated at the start of the pandemic may be open to further scrutiny particularly the initial obsession about using ventilators; and thirdly, it does appear there have been many deaths associated with the withdrawal of critical services for non-Covid related conditions such as routine cancer screening. 

As we approach the two-year anniversary of the first national lockdown in March 2020, one further issue which may result in litigation in the future concerns the decision to impose national lockdowns.  This issue has been highlighted in a recent review by the John Hopkins Institute. 

Published in February 2022 under the title “A Literature Review and Meta-Analysis of the Effects of Lockdown on COVID-19 Mortality", the Review concluded that whilst:-

“lockdowns have had little to no public health effects, they have imposed enormous economic and social costs where they have been adopted”. 

In considering the depressed economic activity; reduced schooling; political unrest, increase in domestic abuse; higher unemployment and mental health issues The Review considered that: - 

“lockdown policies are ill founded and should be rejected as the pandemic policy instrument”.

It is now official!  We now know have it on good authority that, generally, lockdowns do not work and impose greater harm than good.  It is interesting to note that, in light of such conclusions, Scotland’s First Minster continues to support the Coronavirus (Recovery and Reform) (Scotland) Bill which, inter alia provides Ministers with the authority to close down schools, enforce at-home-restrictions and shut down hospitality without Parliamentary approval. Further, although we are coming up for the two years anniversary of the Pandemic, we are still waiting for both the UK and Scottish Governments to present their findings on the effects of the lockdowns.

Whilst it remains very unlikely that any claim arising out of losses associated with the enforced lockdowns would have any chance of success, we do now have information from a credible source that lockdowns do not work in that they fail to achieve what they set out to do and indeed result in serious harm and losses to a significant proportion of the population. 

It will be interesting, particularly if there are more lockdowns called to tackle new and emerging strains of the virus, whether all Governments will continue to slavishly rely upon them. Perhaps the increased threat of future litigation will result in other measures being considered beyond full national lockdowns.

Up until now, Governments have been able to rely upon the excuse that they were following scientific advice provided to them when considering such major decisions as a lockdown and how to impose it.  It was, after all, the tactic adopted by many governments around the world.  In such circumstances, it seems impossible to imagine any court coming to the view that liability for losses incurred can had been established against those imposing such measures.  However, Governments have perhaps now, at least, been put on notice to consider the consequences of their decisions a little more carefully.  

So far, we have seen very little evidence of pandemic related litigation.  It is perhaps understandable that, whilst there is a sense that we are past the worst of the pandemic, there is no doubt that we remain within its grip, so the very real consequences of the pandemic are still not fully known.  It may be that, in some jurisdictions, we begin to see Group Actions taken by those individuals with the same cause of action.  Given that such an action will likely be against a Government or one of its departments and given the drastic consequences of a decision in favour of the pursuers in such an action, it seems very likely that the named Defender will seek to vigorously defend any action.  The road to justice for pandemic related losses will undoubtedly be a long and rocky one and not for the faint hearted!

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