Why we accepted this case

As global project manager and co-ordinator our law firm represents parties injured as a consequence of the COVID-19 coronavirus against responsible institutions. We have not made this decision lightly. Since the outbreak of this crisis, uncertainty has reigned even among experts. The virus exists and is dangerous, and, as a health hazard, it must be taken seriously and combatted like all viruses - there is no doubt about it. But are the current measures taken by governments and authorities proportionate to the threat? Is it reasonable to shut down virtually the entire world economy, to drive thousands of companies into bankruptcy, to destroy many livelihoods and cause further collateral damage that currently cannot even be estimated? As a result of this threat, do we really find ourselves in a condition akin to war that justifies such restrictions or suspension of human rights and freedoms, of civil and individual rights?

For several years, competent and recognised economists and capital market experts have predicted a massive crash of capital markets, presenting facts that are easily comprehended even by non-economists. The markets are overbid, and due to speculations tied to price spirals, some segments are completely overvalued. Financial institutions create virtual financial mechanisms that are artificial and lack in objective assessment, resembling an economic time bomb. Banks are “secured” by unstable derivatives and are kept artificially alive. International, mutual dependencies are becoming increasingly more pronounced. The drop in the price of oil has led previously strong nations into economic as well as social problems. Power relationships are shifting. For strong participants, the globalisation of the marketplace is a blessing - for the weak ones, on the other hand, a curse, since mutual dependencies continue to grow. With their interest rate instruments, central banks have reached their limits. These are all factors that must be confronted. When we examine the recent history of the last 20 years, we recognise such crises all too well. The global financial crisis, starting with the collapse of Lehman Brothers in 2008. September 11, the Arab Spring, various conflicts ranging from the Iraq War to the War in Syria, which has still not come to a conclusion. Banks require support to the tune of billions. The question is raised: from where is/was all this to be paid? The answer is: from debt at a level so high that no one can describe how it can ever be paid off. Governments, institutions and the economy have been able to overcome these crises only by further indebtedness.
How can this debt spiral be stopped?

Other than a horrible world war that no one wants because it is too incalculable and uncontrollable, a massive, worldwide economic crisis could be the solution that is accompanied by, among other things, categorical annulment of debt, allowing us simply to start again from scratch. The consequences and problems of this “solution” lie, however, in the fact that economic power relationships would be completely rearranged, the middle class would fall by the wayside, strong corporate groups in some sectors such as the pharmaceutical industry would become even more influential, and the already existing gulf between the world’s poor and rich would grow even wider. In such a configuration, there would indeed be very few winners but also a great many losers. The implications of the global societal and social consequences of this scenario are not yet foreseeable.

One thing is certain. The consequences of this virus and the measures introduced to combat it are dramatic because they are affecting us with a suddenness and speed never experienced before, touching all social strata and having an effect that is more globally felt than any other crisis in our history.

With our team consisting of international lawyers and economists, we have exchanged views on the current situation with many experts around the world, including physicians, virologists, epidemiologists, economists and legal experts, namely with those who do not appear on TV shows as celebrities of science or enrich themselves from multiple clicks on YouTube and Instagram as “Warner of the Nation”. There is a consensus among the experts that the current measures are in no way proportional to the existing collateral damage.
We directly asked several of these highly trustworthy experts why they are not publishing their views and appear on talk and present the facts from a different perspective. Astonishingly, this reticence was justified first with uncertainty but primarily with the concern that they may possibly be disqualified as conspiracy theorists. Our team also faced precisely this issue in considering whether we should even take on these mandates and provide support for such a project. Who wants to be lumped together with conspiracy theorists and flat-earth advocates and those who maintain that man was never on the moon! There appears to be a trend. People who challenge manifested opinions and developments supported or produced by media quickly qualify as conspiracy theorists and naive starry-eyed idealists so that uncomfortable questions can be evaded. This approach of discrediting critics and sceptics is alarming, dangerous and counter-productive! As lawyers and economists, we too are scientists. The scientist’s essence and purpose is to research. To research means to question. If scientists are no longer allowed to question without being categorised as crackpots or starry-eyed idealists, who is left to do this?

Entirely justified questions have emerged. What is the problem? Is it the virus or rather the way it is approached and the measures that are associated with this approach? Is it not true that some of these extremely radical measures will lead to much more significant damage, thus possibly causing the death of even more people, for example, through lack of medical capacity to treat other illnesses in view of the stampede on medical facilities? Are those who decide on interventions actually and demonstrably exercise their duty of care? Who may profit indirectly or directly from the consequences and resulting damage arising from their decisions and recommendations, and what form will this profit take? Could the losses have been avoided or minimised if the crisis had been handled in some other way? These are not conspiratorial questions but material, legal questions that are put to the test each time a compensation claim is investigated. 

And this brings us to the legal aspects of the current situation that we have researched and seek to explain here in a simple and understandable way. When the law clarifies the issue according to a liability for damages, various aspects must be taken into consideration. A loss must have occurred, a legally protected right (life, health, property) must have been infringed, there must be causality (causation and attributability), there must be an act (what was done or not done), possible justifications must be examined (crisis, self-defence, consent of the injured party...) and fault must be established (intent, knowledge, will, error). In conjunction with the question of fault, the aspect of negligence (failure to exercise an existing duty of care) must be examined. In cases where the relevant factors apply, in most countries there is a duty of the liable party to compensate the injured party.

We do not, in fact, know who caused the virus. Several years ago, it was pigs (swine fever, swine flu) and birds (bird flu), while approx. 20 years ago it was a deadly pathogen called anthrax that was suspected of having gone missing from a U.S. laboratory. In the current case, it is probably the bat. We cannot sue bats or the people who eat them. The initiator’s question is therefore unclear, and it may be left to future whistle-blowers to clarify the matter at some point.

What is indisputable is that enormous damages have been and are still being caused. The damages were caused (based legally on the relationship between cause and effect) not by bats or those who consume them but by presumably irresponsibly introduced measures devised by the politicians responsible. These could, however, rely on clear, cautionary and admonishing recommendations made by institutions. This could lead to the conclusion that these world-renowned institutions have brought about the damages, from which can be deduced a claim for compensation on the part of those who have been injured. This leads to the legal question concerning fault. According to a legal understanding valid in many countries, damage can arise, and blame can be assigned based on deliberate - that is, intentional, purposeful, or negligent action. In both cases, the one responsible for causing the damage is liable for compensation. To the extent that tort/offence has been committed, the burden of proof lies with the claimant or prosecutors. Judgment of the cases lies in the hands of the courts, which apply different standards and bases of discretionary powers and assessment.

Our clients have instructed us to assert their claims for financial losses against the institutions responsible for that damage, caused by measures initiated by authorities - this the right of everyone. As lawyers who take our clients seriously, we represent their rights and interests with all our might and with all available legal means, notwithstanding the concerns expressed at the beginning of this statement. Independent, moral and competent fellow lawyers, experts and investigative journalists are very welcome to follow these developments and make their own useful contributions to the pursuit of justice.

 

Luigi De Micco
CEO De Micco & Friends
April 2020