Marlboro man makes a stand

A British smoker's case against American tobacco company Philip Morris could signal a rise in litigation against UK companies.
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The Independent Online

News that a British smoker is to sue the US makers of Marlboro cigarettes for an estimated £1m 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.

News that a British smoker is to sue the US makers of Marlboro cigarettes for an estimated £1m 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 £7m. 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."