British patients can sue tobacco companies

BMJ 1998; 316 doi: (Published 21 February 1998) Cite this as: BMJ 1998;316:571
  1. Clare Dyer, legal correspondent

    Fifty British lung cancer patients are to go ahead with test cases for compensation against tobacco companies, after the appeal court last week lifted a threat which could have stopped the litigation in its tracks.

    The court reassured the plaintiffs' lawyers, who have taken the cases on a no win, no fee basis, that there is no real risk that they might be ordered to pay the companies' costs personally if they lose. The case is the first to clarify the position of lawyers acting under so called conditional fee agreements. Contrary to suggestions by the cigarette manufacturers' lawyers, the court held that lawyers paid under such agreements are in the same position as those funded by legal aid or by clients paying privately.

    The plaintiffs are represented by two high profile personal injury solicitors' firms, Leigh, Day & Co and Irwin Mitchell, who agreed to act on a conditional fee basis after legal aid was refused. Two leading QCs, Daniel Brennan and Robert Owen, and their juniors are also acting on the same basis. Without the reassurance on costs, the risk of a £10m ($16m) costs order would have forced them to pull out of the case.

    The appeal court, headed by the master of the rolls, Lord Woolf, also lifted a gagging order banning both sides from discussing the case with the media.

    Clive Bates, director of the antismoking charity Action on Smoking and Health, said: “There is a long battle ahead but the lung cancer victims have won the first skirmish with the cigarette companies. Lung cancer sufferers can still join the case and this will improve the chances of success and give strength to those already fighting.” The case is not expected to reach trial before the spring of 1999.

    BAT knew tobacco was addictive

    An internal memo from British American Tobacco leaked to the media last week allegedly shows that Britain's biggest tobacco company knew nearly 20 years ago that the sales of its products depended on their addictiveness. The document, dated 1979, is one of 10000 released to lawyers in the United States in a lawsuit brought by Medicaid, the US state health organisation. It details discussions by executives about finding a new “socially acceptable” addictive product, likely to include nicotine or a substitute for it, that did not need to be lit—to eliminate the need for inhalation and the danger of passive smoking.

    The memo states: “We also think that consideration should be given to the hypothesis that the high profits additionally associated with the tobacco industry are directly related to the fact that the customer is dependent on the product.” The industry has never admitted publicly that cigarettes are addictive.

    Embedded Image

    Ernest Jones (centre), who has lung cancer, with his solicitors


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