UK:Setback for lung cancer victims

[Robert Weissman <rob@essential.org>]

Setback for lung cancer victims

by Terence Shaw, Legal Correspondent 
Electronic Telegraph (1629) 
UK;
Date: Wednesday, 2/10/99

               ===================

LUNG cancer victims seeking compensation from Britain's two biggest
tobacco companies had a severe setback yesterday when a High Court judge
ruled that test cases potentially affecting 36 of the 52 claimants were
time-barred. 

Mr Justice Wright refused to exercise his discretion to allow the
claimants in eight test cases to continue bringing claims against Gallaher
and Imperial Tobacco that were launched outside the normal three-year time
limit from the date that they were diagnosed as having lung cancer. Unless
overturned on appeal, the ruling will probably mean the end of the
litigation for another 28 claimants whose cases were launched late. 

It also means that with only 16 remaining cases likely to go forward for
trial next January, the potential costs burden on each of the claimants if
they lose will be substantially increased. After legal aid was refused,
their cases are being brought under conditional fee agreements in which
their lawyers will receive no fees if they lose. But if they lose they
will have to pay the defendants' costs, expected to total several million
pounds. 

In a joint statement after the judgment yesterday, Martyn Day and Irwin
Mitchell, the solicitors representing the plaintiffs, said: "We now have
to consider this very carefully to determine how next to proceed." 

The plaintiffs in each of the eight test cases had asked the judge to
exercise his discretion under the 1980 Limitations Act to allow their
actions, started between five years and 28 years after being diagnosed as
having cancer, to proceed. But in handing down his 47-page reserved
judgment in Liverpool, Mr Justice Wright said that it would not be
appropriate for him to exercise his discretion. 

The plaintiffs are claiming that the tobacco companies were negligent in
not reducing the tar content in cigarettes between 1957 and 1971 once it
became obvious that smoking caused lung cancer. Mr Justice Wright, who has
been assigned to try the case in January, said the prospects of success
for any of the plaintiffs was "by no means self-evident".
------------------------------------------------------ 2:24 AM on 2/10/99