[Intl-tobacco] Tobacco litigation in the UK

[Robert Weissman]

Marlboro man makes a stand / A British smoker's case against American tobac=
co=20
company Philip Morris could signal a rise in litigation against UK companie=
s.
by Robert Verkaik
Source: The Independent, Tuesday, 9/5/00

News that a British smoker is to sue the US makers of Marlboro cigarettes
for an estimated =A31m will have sent shivers through the spines of UK
tobacco barons. The case, the first UK legal action since the ill-fated
attempt by 50 British smokers to win compensation for lung cancer, could
re-open the door to further domestic litigation.

British lawyers acting for the London father of two, who has been given 18
months to live, are working closely with New York attorneys to prepare a
case to go before a US court. But his lawyers have not ruled out beginning
proceedings in the UK, too.

Last year, litigation against the British tobacco industry was halted when
47 cancer sufferers abandoned their multi-million-pound lawsuit. The
claimants' decision to withdraw followed a hearing in the High Court when
Mr Justice Wright indicated that the cases were time-barred.

Gallaher, makers of Silk Cut and Benson & Hedges cigarettes, and Imperial
promised not to pursue the failed litigants for their costs, which
totalled =A37m. In return, the solicitors agreed not to take action against
any tobacco firm for five years, and not to take any action against
Gallaher and Imperial for 10 years. The agreement was a serious set-back
for lung cancer sufferers, whose chances of winning compensation from
tobacco companies appeared doomed.

But now leading UK law firm Russell Jones & Walker believes it can succeed
in the US courts against Philip Morris, the makers of Marlboro cigarettes,
where others have failed in the UK.

In March, a court in Florida awarded a record $97bn in damages against the
US tobacco industry. Britain's Marlboro man will rely on public admissions
made by Philip Morris and other representatives of the tobacco industry as
to the addictive quality of nicotine and the link between smoking and lung
cancer.

The 46-year-old Londoner began smoking in the late Sixties, before health
warnings appeared on cigarette boxes. He later became hooked on Marlboro
cigarettes in the Seventies when he identified with what he describes as
the then "trendy macho culture" of the Marlboro man advertising campaign.

He has since been loyal to the Marlboro brand, because he claims they gave
him the "hit" other brands didn't. He found he could always purchase
Marlboro, even when travelling abroad on business.

He gave up smoking in 1997 after his father died from cancer and his two
daughters began begging him to stop. In May this year he was diagnosed as
suffering from lung cancer and given 18 months to live. He has had to
relinquish ownership of his clothing manufacturing business and his wife
has left her job to provide full-time care for him.

His lawyers will argue that when in 1971 health warnings began to appear,
he was reassured by the industry advertising and media statements as to
the health implications of smoking. He noticed that the package warnings
became stronger in later years. However, he believed that as he had been
smoking for so long "the damage was already done".

Alan Care, a senior litigation lawyer at Russell Jones & Walker, said his
client and the firm carried a huge financial burden in bringing the case.
He added that he expected to face fierce resistance from the tobacco
industry.

The lawyers are pinning their hopes on a difference in how US courts
determine legal costs. It was thisissue which effectively ended the UK
action.

Mr Care said: "In the US, their 'no win, no fee' deals mean exactly that.
If the claimant lawyers withdraw or lose, their client does not have to
pay costs."

Mr Care said because legal aid was not available for money claims in the
UK his client's options were limited to finding a "white knight" to fund
the litigation in the UK or to "going to the States to seek justice".

However, Mr Care also raised the possibility of funding by the Legal
Services Commission. "If ever there was a case 'in the public interest'
this must be it.  There should be no waste of public funds if the court
allows the case to proceed on the real question."