APPENDIX 7 - SETTLEMENT OFFER: RENNICK BRIGGS ADVICE TO CLIENTS

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APPENDIX 7 - SETTLEMENT OFFER: RENNICK BRIGGS ADVICE TO CLIENTS

LETTER FROM RENNICK BRIGGS TO CLIENTS, DATED 4 APRIL 1997

4th April 1997

C.J.D.

We advise that the Defendants have made an offer to settle APQ's action which she has accepted. Consequently her trial will not proceed on 7th April 1997.

The same terms of settlement which APQ has accepted are now extended to you which are as follows:

1. The Commonwealth undertakes in the event of you contracting CJD as a result of hormone treatment provided under the Human Pituitary Hormone Programme to pay an amount of compensation to you or your legal representative.

[2] The amount of that compensation will be assessed in accordance with the principles of common law assessment of damages as at the date that you or your legal representative gives notice to the Commonwealth that you have been diagnosed with CJD. This assessment of damages will not include any allowance by way of compensation for any damages, costs or expenses paid to or on behalf of you or your family pursuant to the Human Pituitary Hormones Trust Account Trust Fund which was announced by the former Minister for Human Services & Health in November 1994.

In other words, this means you have a right to receive compensation for pain and suffering, loss of income, loss of support you would otherwise have provided your family but for the onset of CJD. In addition, medical and other care costs can be recoverable by you or your family from the Human Pituitary Hormones Trust Account Trust Fund.

3. Your legal costs will be paid by the Defendants.

If you wish to accept the offer, you will be required to discontinue your action against both Defendants and execute a Release of both Defendants. You will also be required to keep confidential the terms of the Agreement.

We enclose herewith stamped, self-addressed envelope and Memorandum for you to provide your instructions on whether you wish to accept or reject your offer. We must have your instructions no later than 24th April, 1997.

Consequently, the offer includes no compensation for psychiatric injury.

However, it does provide you with the right to compensation in the instance that you contract CJD. That compensation will be calculated without reference to such liability issues as to the date when you were treated or with which hormone you were treated.

You will recall our advice about the decision made in the U.K. HGH proceedings last year where the High Court decided that people treated for the first time after 1st July 1977 and who contracted CJD were entitled to compensation. However, those treated prior to or both before and after 1st July 1977 were not entitled to compensation if they contracted CJD. The date of treatment is no longer a relevant issue in determining the amount of compensation you are entitled to in the instance that you do contract CJD. We have recently learnt that the UK defendants are appealing the entire Judgement of the High Court.

After the Commonwealth Attorney General's final refusal to provide legal aid in late December 1996, we endeavoured to raise funding from various other sources for APQ's trial. We approached other prominent personal injury law firms in Victoria with a proposal that they assist us with such funding and in return we would share legal costs recovered in the event that APQ was ultimately successful. These firms shared our view that APQ had good prospects of success at trial, however they could not assist for various reasons including their own plans for the forthcoming year.

Our request for clients to contribute $750.00 to the costs of APQ's trial disbursements met with a substantial response in raising $46,000.00. However, such funds were still insufficient to meet anticipated trial disbursements.

We made an application to the Registry of the Supreme Court requesting that it waive the daily trial fees of $273.00 per day. This required APQ to submit a Statement of Financial Circumstances. This application was refused by the Registry on the basis that APQ had assets in excess of the liabilities. We can say that APQ's assets were typical of most people in that she had a half share in the family home and a car. Such assets were sufficient for the Registry to deny a waiver of those Court fees.

We made a further application to the Trial Judge seeking an order that the Defendants pay for transcript costs of the trial for APQ. The Trial Judge had not made a final decision on that application before APQ's action settled. As there appears to be no precedent for such an application, we were not confident that His Honour would exercise his discretion in favour of APQ.

On the 26th March 1997, the Law Institute of Victoria announced 'Law Aid' which is a new scheme which will provide some funding for trial disbursements for all Victorian civil litigants. We applied for funding under that scheme hours after its launch was announced. However that application was also refused on 1st April 1997.

Both ourselves and others have lobbied Members of Parliament in relation to various issues relating to CJD. We made every effort in relation to legal aid, however without success.

APQ's decision to be "the test case" was indeed a brave and selfless decision, one taken for the benefit of all recipients. APQ had been advised that there was a risk that if she was unsuccessful in her proceeding, then the Defendants might seek to recover their costs from her personally. While we considered this a remote risk, it needed to be kept in mind in light of the current Government's implementation of harsh economic rationalist policies in the running of government generally.

APQ, as the "test case", has won the right for all out litigants to full Common Law damages in the event that they contract CJD, irrespective of when they were treated and with what substance (HPG or HGH).

Despite the limited resources available to us and APQ, we were ready to commence APQ's trial. We maintained that position of preparedness to go to trial on APQ at all times. We believe that state of preparedness caused the Defendants sufficient concern that APQ might succeed at trial. However, it was equally evident that the Defendants were committed to defending APQ's matter all the way to the High Court. This would involve a delay of at least a couple of years before a final decision was reached in APQ. In the end, the lack of legal aid and such further delay made the situation nearly intolerable for both APQ, ourselves and probably for many of our clients.

You are free to accept or reject the offer. All those that accept the offer will recover issuing fees on their Writs previously paid by them. If you obtained a medical report at our request, we should be able to recover most of that cost for you.

We return herewith your contribution of $750.00. Thank you for being prepared to make such a contribution to support APQ.

In light of the lack of legal aid, we are not in a position to conduct any further cases to trial.

We enclose herewith a Memorandum of Authority requiring you to complete either Option 1 or 2 and ask that you return it to us no later than 24th April 1997. If you decide to accept the offer, please complete the enclosed Agreement and Release and return it with the Memorandum in the stamped self addressed envelope.

In light of the aforementioned circumstances, Mr Jack Rush, Q.C. Mr. John Philbrick of Counsel, and ourselves strongly recommend that you accept the proposal.

As always, please ring us on any matter you may wish to discuss.

Encs.

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