The litigation by a group of people with lung cancer against two British tobacco companies was dealt a severe blow in the High Court last week.
The High Court ruling in nine “lead” cases probably means that 36 of the 52 plaintiffs are barred from suing Imperial Tobacco and Gallaher because they launched their claims too late, and the small numbers remaining will make it uneconomic to continue. Ironically, the ruling came only days before a smoker in California was awarded $50m (£31.25m) in punitive damages from Philip Morris.
In the English courts claims must normally be brought within three years of the date that a plaintiff realises he or she has suffered a significant injury and can attribute it to an alleged act or omission by the defendant. Most of the plaintiffs were diagnosed with lung cancer more than three years ago, some more than 25 years ago.
The judge has the discretion to allow cases to go ahead even though they were brought outside the three year limitation period. But Mr Justice Wright refused to exercise his discretion to allow such claims to proceed.
Ten of the original 62 dropped out at an earlier stage for fear of losing and facing a large bill for their share of the tobacco companies' costs.
A spokesman for Leigh, Day and Co and Irwin Mitchell, the two law firms acting for claimants, said: “Obviously many clients will be disappointed. We now have to consider this very carefully to determine how next to proceed.”
With claims worth about £50000 each, the small numbers left are bound to make the case uneconomic for the lawyers, who took it on a “no win, no fee” basis after legal aid was refused. The total costs of the case, if it had gone to trial in January 2000 as planned, have been estimated at up to £10m.
The judge said that he had the impression that the litigation was “lawyer driven.” Chances of success were “to a degree speculative.” Claimants might have any damages reduced or wiped out because of contributory negligence in continuing to smoke when they knew of the risk and would face a “formidable” liability for the tobacco companies' costs if they lost.
A spokesman for Gallaher said: “We were always confident we would get this judgment. We have always maintained a confidence in our ability to defend ourselves and will continue doing just that.''
Clive Bates from the pressure group ASH said that the tobacco companies had repeatedly used technicalities to try to derail the case.