The Blood Transfusion Services Board should have admitted liability earlier than it did but it was "quite entitled to proceed in the manner in which it proceeded", the former Minister for Health, Mr Noonan, has said.
Stoutly defending his role in the handling of the case of the late Mrs Bridget McCole, Mr Noonan said yesterday "as things panned out, at the end of the day, I don't see that they (BTSB) gained anything from not admitting liability earlier".
It was "ironic" that while Mrs McCole's award amounted to £175,000, the legal costs, which are not yet finalised, will be not less than £1.5 million and could reach £2 million, he said. The legal costs in the High Court case taken by the Carlow-based woman, Mrs Mary Quinlan, were in excess of £1 million, he added.
The Tribunal of Compensation had given its highest award to date - between £600,000 and £700,000 - to a Hepatitis C victim earlier this summer. He estimated that the ultimate costs of the tribunal would be £250 million, plus 11 per cent in legal costs.
The issue of legal cost had been a factor in his judgment that women infected by the Hepatitis C virus would be better off to go to the compensation tribunal rather than the courts, he said.
Asked what his precedessor, Mr Brendan Howlin, meant when he told RTE that the "Minister at the time and the government made the decision in relation to how these things happened", Mr Noonan said he had been "popped a question and his answer was based on faulty memory". Mr Howlin was "mistaken . . . he disremembered". Flatly denying that he had seen a letter, in advance, from the BTSB to Mrs McCole's lawyers, which stated that if she continued her court action and lost, the board would seek all costs, Mr Noonan said he had no knowledge of the controversial paragraph until after it had been sent.
According to Mr Noonan, Mr Cowen's claim that he had seen the letter in advance was based on a handwritten note from an official to the Secretary of the Department of Health, saying that the chairman of the BTSB had rung to state that Mrs McCole's health had deteriorated rapidly and suddenly and they wanted to admit liability. He referred also to the sending of the letter, Mr Noonan said.
"I never saw that handwritten note. I did not see the letter in advance," he said.
Asked if he regarded the controversial clause in the letter as a "mistake", Mr Noonan said, "first of all, I do not think they were threatening her". There was "another way of looking at it but, at the end of the day, there was no necessity to include that paragraph".
"It is not my position to defend the BTSB, but looking at it factually, they apologised, they admitted liability, and they undertook to indemnify her for all costs up to the date of the letter. Then they went on to say if there were further proceedings after this date, the cost indemnity would not apply", he added.
Agreeing that this had been interpreted as a threat, Mr Noonan said "it was not sent to Mrs McCole at all" but to her lawyers. "I would have thought that, at that point in the proceedings, it would have been possible for her legal team to explain to her that this is effectively what they (the BTSB) were saying - there is an apology, there is an admission of liability and costs will be indemnified", he said.
He did not know what Mrs McCole's lawyers had told her because, while the documents for the State and the BTSB are published, there were none setting out the legal strategy of the Donegal woman's lawyers.
He realised that the BTSB's admission of liability represented "a major change of policy". Asked if he approved of this change, he said: "I would not have to approve or disapprove . . . the consideration was, would this affect the State's position?" He immediately contacted Mr Eoin Fitzsimons SC, who came to the Department and after discussion, the "strongest legal advice possible" was that it did not affect the State's position and that it should continue to deny liability .
He instructed the Senior Counsel to inform Mrs McCole's solicitors of the advice they had just given him as Minister. Meanwhile, foerseeing the "hurt" that could be caused to Hepatitis C victims if they pursued damages claims through the Irish adversarial courts system, he believed it would be "a solution" for them to go to the compensation tribunal. He could not alter the system, but defendants were entitled to defend their position "and that is what they did".
He had been left "holding the can" after the Stardust tragedy when, four years after the fire, families of those killed and injured were "frightfully hurt". As a result, he saw the benefits of a no-fault tribunal where the State would pay compensation.
His advice in the Hepatitis C situation was that the State was not liable, and Mr Cowen was pursuing a similar policy. His policy was not underpinned by a belief that it was imperative that the defendants should avoid any admission of liability.
Insisting that the State, the BTSB and the NDAB had always conducted separate legal defences, Mr Noonan said Mr Cowen was doing exactly the same thing since coming to office. He strongly defended the fact that he had not told the BTSB that the Attorney General took the view that the blood board was negligent. As Minister, he had been told, in the course of advice that the State was not liable, of the "liability or otherwise of the other defendants". Asked how he reacted to the news that the BTSB was negligent, he said he felt glad that a compensation tribunal was in place and "it enabled me to go to Government and argue for the expenditure of maybe £200 million".
The BTSB took the view that they had a "defendable case"; their general position could have been that what they did in 1977 "would have been no different from the best international practice". But when they tried to prove that they were unable to do so.
He could not, at any time, influence the BTSB, and as Ms Fidelma Macken SC said in her report last week, he was in no legal position to do so. If he had the time over again, he could not have acted otherwise.