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CASE NO: PTA 1999/6436/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(Mr Justice Wright)
ROYAL COURTS OF JUSTICE
STRND, LONDON WC2A 2L
Thursday 6 APRIL 2000
Before:
LORD JUSTICE EVANS
AND
LORD JUSTICE MAY
__________________________
MARTIN MARGOLIS
CLAIMANT/APPELLANTS
-and-
IMPERIAL TOBACCO LIMITED
first defendant
GALLAHER LIMITED
SECOND DEFENDANT
HERGALL (1981)
(IN LIQUIDATION)
THIRD DEFENDANT
_________________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
_________________________
THE APPLICANT Appeared on his own behalf, assisted by his wife,
MRS IRIS MARGOLIS
THE RESPONDENT did not appear and was not represented
_________________________
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE MAY:-
This is an application by Mr Martin Margolis for permission to appeal against
judgments and orders of Wright J. made on 9th February and 23rd April 1999.
The judge refused Mr Margolis permission to appeal in a letter dated 10th May
1999. Mr Margolis is in poor health. Despite this, he has appeared before us
this morning with his wife who has spoken on his behalf. This is despite the
fact that Mr Margolis has recently been in hospital with a second episode of
pneumonia and is scarcely yet recovered. Mrs Margolis has told us that her
elderly mother has also been in hospital with a broken hip and her care has
caused great difficulty.
Mr Margolis brought proceedings against Gallaher Ltd. and Hergall (1981) Ltd.
by a writ dated 12th November 1996. He was one member of a group of claimants
who brought proceedings against tobacco companies instructing as their
solicitors Leigh Day and Co. and Irwin Mitchell. Some or all of the claimants
entered into conditional fee agreements with their solicitors after they had
been refused legal aid. The essence of Mr Margolis' claim was that he had
contracted lung cancer as a result of smoking the defendants' cigarettes and
that this was caused by the defendants' negligence. By the end of 1998, the
group consisted of 52 or 53 claimants and the litigation was assigned to Wright
J. In addition to their solicitors, the claimants, including Mr Margolis, were
advised and represented by counsel, including leading counsel.
The claims of 35 or 36 of the claimants in the group, including that of Mr
Margolis, were begun outside the statutory limitation period. Wright J.
decided in July 1998 that there should be a preliminary hearing on the issue of
limitation. Ten cases had been selected by agreement between the parties to
act as lead cases. Of that group of 10, it was agreed that 8 claimants did not
start their proceedings within 3 years of the date by which they had knowledge
of the matters set out in section 14(1) of the Limitation Act 1980.
Accordingly, Wright J. held a hearing between 6th and 12th December 1998 to
determine, in the 8 cases, whether he should direct under section 33(1) of the
Limitation Act 1980 that the limitation provisions in section 11 of that Act
should not apply to these claims. Mr Margolis was one of these claimants. The
judge heard evidence, including evidence from Mr Margolis. In a decision
handed down on 9th February 1999, the judge declined to exercise his discretion
to disapply the limitation provisions. It is against this decision that Mr
Margolis seeks permission to appeal.
Towards the end of February 1999, about 46 of the claimants decided to abandon
their claims and Leigh Day and Co. and Irwin Mitchell ceased to act as
solicitors for the claimants in the proceedings. The terms on which the 46
claimants abandoned their claims included that the defendant tobacco companies
agreed not to seek to enforce any costs orders against them. Mr Margolis did
not abandon his claim. By 23rd April 1999, all but 3 of the remaining
claimants had decided to abandon their claims on the same terms as the original
46. Mr Margolis was one of the 3 remaining claimants. On 23rd April 1999,
Wright J. held a hearing at which he was asked by Mrs Margolis, speaking on
behalf of her husband, to reconsider his decision not to disapply the
limitation provisions. He declined to do so and, among other things, dismissed
Mr Margolis' claim on the basis that it would inevitably fail because it was
barred by limitation. Mr Margolis seeks permission to appeal against this
order. He is a little out of time in making these applications to this court,
but, if I thought that he should otherwise be given permission to appeal, I
should readily grant him the necessary short extension.
Mr Margolis now acts without formal legal representation, although it appears
that a well constructed appeal bundle has been put together for him
gratuitously. His grounds of appeal are that he asks the court to exercise its
inherent discretion under section 33 of the Limitation Act 1980 to allow his
claim to proceed since it would be equitable to do so. He refers to section
33(1) of the 1980 Act. In addition, the court has a long letter written by Mr
Margolis and addressed to the Head of the Civil Appeals Office in which he
explains his predicament and gives reasons in support of his application. I
shall refer to this letter a little later. Speaking generally, however, Mr
Margolis says that he contracted lung cancer as a result of many years of
addictive cigarette smoking. Although the cancer itself has been eradicated by
operation, it has ruined his former comfortable and enjoyable life and left him
and his wife without means and reliant on state benefits. He regards this as
the fault of the tobacco companies and is particularly incensed because he says
that their advertising entices children and young people to start, and become
addicted to, cigarette smoking for the profit of the tobacco companies. He
understands that compensation has been paid in the United States and he
considers that it ought to be paid here.
It does not diminish the force in human terms of these contentions to say that
Wright J's decisions had to be made by reference to the way in which the claims
of Mr Margolis and the others in the group were formulated on their behalf by
their experienced legal representatives. It was properly accepted on his
behalf that his claim was statute barred unless the court in its discretion
disapplied the limitation provisions under section 33 of the 1980 Act.
The material parts of section 33 of the 1980 Act are:
"(1) If it appears to the court that it would be equitable to allow an action
to proceed having regard to the degree to which -
(a) the provisions of section 11 ... of this Act prejudice the plaintiff ...;
and
(b) any decision of the court under this subsection would prejudice the
defendant ...;
The court may direct that those provisions shall not apply to the action, or
shall not apply to any specified cause of action to which the action
relates.
...
(3) In acting under this section the court shall have regard to all the
circumstances of the case and in particular to -
(a) the length of, and the reasons for, the delay on the part of the
plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or
likely to be adduced by the plaintiff or the defendant is or is likely to be
less cogent than if the action had been brought within the time allowed by
section 11 ...;
(c) the conduct of the defendant after the cause of action arose, including
the extent (if any) to which he responded to requests reasonably made by the
plaintiff for information or inspection for the purpose of ascertaining facts
which were or might be relevant to the plaintiff's cause of action against the
defendant;
(d) the duration of any disability of the plaintiff arising after the date of
the accrual of the cause of action;
(e) The extent to which the plaintiff acted promptly and reasonably once he
knew whether or not the act or omission of the defendant, to which the injury
was attributable, might be capable at that time of giving rise to an action for
damages;
(f) The steps, if any, taken by the plaintiff to obtain medical, legal or
other expert advice and the nature of any such advice he may have received."
As I have said, Wright J. was concerned with applications on behalf of 8 lead
plaintiffs to disapply the statutory limitation provisions. These included Mr
Margolis. It was conceded on their behalfs that, by the date of diagnosis of
lung cancer in each of their respective cases, they each had sufficient
knowledge to trigger the start of the limitation period under section 11 of the
1980 Act. The judge considered the applications in part by reference to the
individual facts of each claimant's case, and in part by reference to facts
common to each of the cases.
Section 33(1) requires the court to consider the degree of prejudice to the
claimant if an order is not made, and the degree of prejudice to the defendant
if an order is made. The court has to have regard to all the circumstances of
the case and in particular the matters referred to in the subparagraphs of
subsection (3). In a sense, of course, the prejudice is obvious. If the
limitation provisions are not disapplied, the claimant's claim will fail: if
the limitation provisions are disapplied, the defendant will lose a limitation
defence which would otherwise defeat the claim.
Wright J. correctly said that in order to assess the degree of prejudice to the
claimant if an order is not made, it is necessary for the court to take an
overall very broad view of the claimant's prospect of success. The judge
reminded himself that he should not attempt to determine the merits of the
claim on the affidavit evidence which was before the court. But to obtain an
overall view, it was obviously necessary to look at the way in which the
claimants put their cases on their pleadings. Each individual statement of
claim was for practical purposes identical. The duty of care said to be
imposed on the defendants was to minimise the risks to the claimants' health by
making cigarettes as safe as practicable and as soon as practicable; and this
duty would have been discharged by reducing the tar yield from any cigarette
progressively from the year 1957 so that by 1971 the maximum yield from any
cigarette manufactured by any of the defendants should have been no more than
10mgs per cigarette. No complaint was made about the levels of tar in
cigarettes before 1957. But it was said that by that date at the latest, any
responsible manufacturer would have been aware at least of a risk that the tar
contained in cigarettes was causative of lung cancer and that action was called
for to reduce that risk. The basis of the 10mgs per cigarette level was said
to be that, by 1971, that was the minimum level which could be achieved with
the then current technology in a plain cigarette. The judge observed that in
1971 there were no regulations or other requirements limiting the tar level in
cigarettes manufactured for consumption in the United Kingdom. Tar levels were
governed between 1981 and 1992 by formal agreements between cigarette
manufacturers and the government and from 1992 onwards by regulation. None of
those agreements or regulations have yet imposed a tar level as low as 10mgs
per cigarette.
The statements of claim refer to a very large number of articles and
publications in support of allegations that the defendants knew or should have
known by 1954 that there was a connection between smoking and lung cancer; by
1957 that tar reduction by means of filter tips or special low tar cigarettes
reduced the incidents of lung cancer in smokers of such cigarettes; and by 1963
that nicotine in cigarettes was addictive. The core allegation of negligence
was that the defendants were in breach of duties of care by failing to reduce
the tar yields in all cigarettes manufactured and distributed by them to 10mgs
per cigarettes or less by 1971. There were other allegations of breach of
duty, but the judge recorded that leading counsel for all the claimants made it
plain that his case against the defendants was focused solely on the tar levels
in the cigarettes. It was not intended to put forward any primary case on
liability that the defendants were negligent in failing to warn the claimants
of the risks to health involved in smoking cigarettes. The purpose of this was
to lay a factual foundation to meet expected defences that individual claimants
consented to, or willing assumed the risk of, the consequences of smoking
cigarettes or that they were contributorily negligent.
The judge referred to submissions made by leading counsel for the defendants on
the sustainability of the claimants' pleaded cases. He refrained from reaching
any firm conclusion, but said that it was plain that the entirety of the
claimants' cases was contentious to a degree. The defendants challenged the
existence of any duty of care. Even assuming there was such a duty, they
denied that there was any breach, since all relevant times they had made
available for purchase low tar cigarettes with tar yields considerably lower
than the figure contended for on behalf of the claimants. The tobacco
companies had always complied with the maximum tar levels imposed by the
government whether by regulation or voluntary agreement. It was not suggested
otherwise. The defendants also strongly challenged the claimants' cases on
causation. It was suggested that no one knows precisely when a smoker who
develops lung cancer will have reached the point of no return so that lung
cancer will inevitably develop. The evidence suggested that only 10% of all
smokers actually develop lung cancer and many heavy smokers go through a long
and reasonably healthy life without ever developing any smoking related
disease. The defendants therefore contended that claimants, particularly those
who started smoking in the 1930s and 1940s, could not demonstrate that, if the
tar yields in all cigarettes had been reduced to the level contended for by
1971, they would not by then have already suffered the irreversible changes
leading to the development of cancer. Other causation problems were also
contended for.
Having considered these questions at greater length than I have summarised
them, the judge said:
"I have said enough to indicate that, without forming any particularly firm
views on the matter, it must be acknowledged that the plaintiffs' chances of
establishing their primary case is to a degree speculative. ...
If the plaintiffs do overcome the hurdles that I have indicated so as to
establish primary liability, the defences of volenti non fit injuria and,
perhaps even more obviously, that of contributory negligence in continuing to
smoke after they had become aware that the practice was said to be injurious to
their health, may result in any recovery that they are able to make being
greatly reduced, or even totally eliminated. I am aware that the plaintiffs
intend to rely upon expert evidence (the nature of which I have not seen) in
relation to nicotine addiction; but as against that I have evidence that some
plaintiffs had given up smoking from time to time, and all gave up without more
ado once they had been diagnosed as suffering from lung cancer.
Taking a broad view it seems to me plainly legitimate to say that the prospects
of success in this litigation on behalf of any plaintiff is by no means self
evident."
The judge considered the level of damages which successful claimants might in
general expect to recover. He unhesitatingly recognised that to be diagnosed
as suffering from lung cancer is a shattering experience and that the
inevitable operation of either total or partial removal of the affected lung
inevitably leaves a sufferer with a substantial degree of permanent disability.
He considered, however, that the levels of damages likely to be recoverable in
any individual case, even on full liability, were not likely to reach the
highest ranges. Leading counsel did not suggest otherwise on behalf of the
claimants. The youngest age at which any of the claimants whose cases the
judge was considering was diagnosed as suffering from lung cancer was 40, and
the oldest 61. All claimants had now passed the 5 year period after which
their doctors regarded them as being cured of the cancer, even though they may
have permanent respiratory disability. Those diagnosed at an earlier age were
usually able to return to work, although sometimes in lighter occupations. The
judge would examine the details of each individual case, but as a general
impression it seemed to him that general damages for pain and suffering and the
loss of the amenities of life in any of the 8 cases were unlikely to reach the
six figure range. As against that, the litigation would obviously be extremely
expensive to conduct and the costs involved were likely to run to millions of
pounds. The potential liability of each of 52 plaintiffs if they lost the
litigation was formidable. Some of the plaintiffs at least had assets which
might in those circumstances be at risk. In summary, the judge said:
"All in all, therefore, the prejudice to be suffered by any individual
plaintiff were I to refuse to grant his application may well not be as great as
might otherwise be the case. I shall return to this particular topic when I
consider the circumstances of each individual case."
In my judgment, this was an entirely proper and balanced account and assessment
of this aspect of prejudice to the lead claimants generally, if the limitation
provisions were not disapplied. They had speculative claims which might not
succeed at all. If their primary claim did succeed, it was highly likely that
contributory negligence would substantially reduce recovery. Recoverable
damages on full liability would be substantial, but not at the highest level.
The costs liability, if the claims failed, could be enormous and in individual
cases devastating.
The judge turned to consider the prejudice which would be suffered by the
defendants if he were to disapply the limitation provisions. The defendants
were not the unexpected recipient of a windfall defence as a result of a
claimant's solicitor inadvertently allowing the limitation period to expire by
a short margin. The shortest overrun was 4 years and 5 months after the
claimant, Mr Hodgson, was diagnosed as having lung cancer - so that he was 1
year and 5 months out of time. The longest period was in the case of a Mr
Jenkins, who issued his writ 27 years and 9 months after diagnosis, or nearly
25 years out of time. The judge referred to authority in support of the
propositions that, once the period of 3 years has expired, it is for the
claimant to satisfy the court that it is indeed equitable to allow his action
to continue, and the onus on him is a heavy one; and that a period of
substantial delay will entitle a judge to infer that there has been a loss of
recollection and in consequence an increased risk that it will not be possible
to have a fair trial. It was contended on behalf of the claimants that the
prejudice claimed by the defendants was more apparent than real. The evidence
relating to the causal relationship between cigarette smoking and the tar yield
from cigarettes on the one hand and the incidents of lung cancer on the other
is fully set out in a large volume of scientific literature. Oral evidence
would make little difference. The judge considered that there might well be
merit in this point. But there were also allegations in the statements of
claim imputing ulterior motives of commercial advantage to the tobacco
companies; allegations of deliberate suppression of facts and of recklessness;
and suggestions (which appear in a slightly different form in Mr Margolis'
letter to this court) that there was a deliberate policy on the part of tobacco
manufacturers to continue to manufacture higher tar cigarettes in the knowledge
that higher nicotine content increases the dependency of smokers upon
cigarettes and thus tends to increase sales. It seemed to the judge that the
unavailability as witnesses of persons who were directing the affairs of the
defendant companies over the relevant period, and of experts who were advising
them, might well present difficulties for the defendants in meeting allegations
of this kind.
The judge considered the fact that, as things were before him, there were at
least 16 claimants whose claims were not statute barred and who intended to
maintain their actions against the defendants. He referred to previously
decided cases which considered the extent to which this was, in group actions,
a relevant consideration when the court was considering whether to exercise its
discretion under section 33 of the 1980 Act in individual cases. The judge
considered that this and a number of other possible consequences of his making
or not making the order were all comprehended within the expression "all the
circumstances of the case" in section 33(3).
The judge then turned to consider the 6 particular aspects of the case which he
was required to have regard to under section 33(3) of the 1980 Act. Some of
them were more conveniently to be dealt with in the context of the individual
cases, but there were general points to be made. Paragraph (a) refers to the
length of delay on the part of the plaintiff and the reasons for it. The judge
said that it was common ground between the parties that, although the delay
referred to in the paragraph means the delay subsequent to the expiry of the
primary limitation period, the court is entitled, when it considers the degree
of prejudice affecting each party, to take into account all the circumstances
of the case, including the staleness of the case when the claim was first
notified. He referred to a passage in the opinion of Lord Oliver of Aylmerton
in Donovan v. Gwentoys Ltd [1990] 1 W.L.R. 472 from which he concluded,
in my view correctly, that he was not confined to considering the delay that
had occurred since the limitation period expired. He could and should take
into account at least the total period of delay from the date of knowledge for
the purposes of section 14 of the 1980 Act. The individual periods for delay
were for consideration in the individual cases. As to the reasons for delay,
these were set out in each individual statement of claim. It was said that it
was reasonable for each claimant to delay starting proceedings until the Legal
Aid Board had determined that it was not going to fund any action of this kind
and until the claimants' lawyers had agreed to undertake the various actions
under conditional fee agreements. Reference was also made to the defendants
professed determination to contest liability and refusal to concede to that
cigarette smoking was addictive and inherently dangerous. The judge said that
it became apparent from the evidence given by the individual claimants that
none of these factors, except the willingness of the lawyers to act under
conditional fee agreements, had any material impact upon their minds at all.
He referred specifically to Mr Margolis, who applied for legal aid in 1995,
when his claim was already substantially out of time. Having considered these
points in some detail, the judge said:
"It is a matter of some concern to me that I have been driven to the conclusion
that the reasons pleaded in the various statements of claim are the product of
the ingenuity of the plaintiffs' legal advisors, and do not represent either
the reality, or the instructions given by each individual plaintiff."
Paragraph (3)(b) of section 33 refers to the likely cogency of evidence. The
judge had already dealt with evidence as to primary liability. He would deal
with the cogency of other evidence when he turned to individual cases.
Paragraph (3)(c) of section 33 refers to the conduct of the defendants after
the cause of action arose. The judge referred to authority to the effect that
this concerned the defendants' procedural conduct in and in relation to the
claimants' claims, and did not extend to substantive criticisms of the
defendants' conduct as part of or in relation to the substantive causes of
action.
No point was raised by the claimants under paragraph (3)(d) of section 33.
Some at least of the claimants were very ill for a period of time, particularly
after their operations. But their leading counsel did not seek to argue that
any of them were disabled in any sense relevant to this particular
paragraph.
The other matters arising under the particular subparagraphs of paragraph (3)
of section 33 were for consideration in the context of each individual
claimant's case.
I shall now quote in full the section of the judge's judgment in which he deals
with Mr Margolis' individual case. The judge said this:
"Mr Margolis was born on the 19th April 1922, and he is now 76 years of age.
He started work at 14 upon leaving school as a Sales Assistant, until he went
into the Royal Air Force in 1941. He started smoking when he started work and
by the time he went into the Services he was smoking 20 to 25 Senior Service or
other untipped cigarettes a day, this continued until he gave up in 1982.
After he left the Services he joined his father-in-law in his warehousing
business and in due course took it over himself. In 1969 his father-in-law
died of lung cancer, having been a heavy smoker, and Mr Margolis was left in no
doubt that at least a substantial cause of the illness was being attributed to
his father-in-law's smoking habits. He describes this as being a "sneaking
suspicion" that cigarettes were doing him harm, but I am pretty certain that it
was a much stronger belief than that. Indeed, in 1967 he did give up, because
of his wife's objections, and succeeded for three or four months. He only
succumbed again when he attended his son's bar-mitzvah, when for no very good
reason he started to smoke again. He was, he accepts, aware of the warnings on
cigarette packets when they appeared in 1971; but he deposes that he was so
hooked on cigarettes "that I did not want to believe (and therefore I did not
believe) that the warnings really applied to me". I think it may well be that
it would have been within his power to stop again, if he had wished to.
He went on smoking steadily, mostly Senior Service, until 1982. It was pointed
out to him that over that period the tar levels in Senior Service cigarettes
were being progressively reduced, but he said, frankly, that he had not noticed
that change. In February 1982 he developed a smokers cough and went to see his
GP. She told him in categorical terms what the cause of the problem was, and
Mr Margolis stopped smoking there and then, and has never resumed. A chest
x-ray taken at that time was reported normal, but it is now apparent that this
was all too late, because the cough persisted, and by August 1982 further
investigations disclosed the presence of lung cancer. He underwent an
operation on the 16th September 1982, and his left lung was removed. There
were some minor complications post-operatively, and he was not discharged from
hospital until 29th October. Thereafter he seems to have done reasonably well,
but for the occasional episodes of coughing in 1986, 1990 and 1994, and
generally speaking his respiratory history has been relatively uneventful until
1996. Nevertheless, Dr Rudd in 1997 assessed Mr Margolis as suffering from a
severe ventilatory defect, and his overall respiratory disability is assessed
at 60 per cent of which 40 per cent is attributable to the pneumonectomy. On
the other hand, there is no material risk of recurrence of the original cancer,
and only a very small risk of development of any further cancer as a result of
past smoking. Mr Margolis claims that he was forced to give up work by handing
his business over to another member of his family in 1982 so that his income
therefrom has been substantially reduced. This, together with a number of
other items produces a special damage claim to date of well in excess of
£100,000, and will, I do not doubt, require in-depth investigation, which
may well be hampered by the staleness of the claim.
Mr Margolis did not consider the possibility of making a claim against any
tobacco company until 1995 when he saw a television programme which referred to
persons in the United States pursuing claims. When he saw that he contacted
his local Citizens Advice Bureau who in due course put him in touch with Mr
Day. He issued his writ against Gallaher Ltd (he makes no claims against
Imperial Tobacco Ltd) on the 12th November 1996. His reasoning was that it
never occurred to him to make such a claim, that there was no point in seeking
to sue a large organisation as an individual and that he did not realise that
cigarettes could be produced in any other form than they currently were.
However, Mr Margolis also added, both in his Affidavit and in the witness box,
with a clarity of vision which perhaps is denied to some of his fellow
plaintiffs, that he also thought that it was his own fault for smoking in the
first place; and he added that he still thinks that.
This is another exceedingly stale claim. Proceedings were issued against
Gallaher 14 years after the date of Mr Margolis' diagnosis, and 11 years 2
months out of time. Quite apart from the difficulties shared by all the
plaintiffs so far as the possible defences to their claims are concerned, Mr
Margolis also has a particular difficulty, shared with Mr Jenkins, on
causation. He smoked steadily from 1937 for 20 years prior to the date by
which the plaintiffs claim that the defendant manufacturers should have begun
reducing the tar levels in their products. For these reasons coupled with all
the other reasons that I have previously discussed, and which seem to me to
apply to this plaintiff with equal force, I decline to exercise my discretion
to direct that the provisions of s. 11 of the Limitation Act 1980 should not
apply to this case."
The judge had reached equivalent conclusions declining to exercise his
discretion to disapply the limitation provisions in each of the other 7 lead
cases in which the question of limitation arose. The judge then concluded his
judgment with these observations:
"All the plaintiffs who appeared before me, and Mr MacMillan, tell a tale which
attracts considerable sympathy. All are ill, and are disabled to a lesser or
greater degree, and all appear to bear their misfortunes with great good humour
and fortitude. It is with regret that I have come to the conclusion that none
of them should be permitted to continue their claims against the defendant
companies. That is not only because of the inherent difficulties in the
successful presentation of their respective cases, or the somewhat speculative
nature of their claims, but in particular because in my judgment none of them
(save only perhaps Mr Hodgson, in so far as his own personal activity was
concerned) acted promptly or reasonably once they knew whether the acts or
omissions of the defendant tobacco companies to whose products they claim their
injuries are attributable, might be capable of giving rise to an action for
damages. It is conceded that that date was attained, in each case, as at the
date of diagnosis. Thereafter, I am satisfied, none of them did anything
effective to pursue any claims against the tobacco companies until Mr Day
advertised for claimants or subsequently made offers of CFAs to facilitate
litigation. I cannot believe that the underlying policy of s. 33 of the 1980
Limitation Act was ever intended by Parliament to permit an injured person,
once he had attained the knowledge described in s. 14 of the Act, simply to lie
in wait until the time became opportune to present a claim, whether because of
a change in the law, or an improvement in his own financial circumstances, or
any other state of affairs arising for whatever reason which would permit him
to bring an action which he had hitherto regarded himself as being unable or
unwilling to bring. As I said at the outset of this judgment, the whole
purpose of the Limitation Act is to ensure that claims are litigated promptly
and that stale claims should be discouraged. If that proposition requires any
support, it is to be found in the speech of Lord Griffiths in Donovan v.
Gwentoys Plc (Supra) where he said (at p.479 A):
"The primary purpose of the limitation period is to protect a defendant from
the injustice of having to face a stale claim, that is a claim with which he
never expected to have to deal."
Further in Beattie v. British Steel Plc (Supra) Swinton Thomas LJ
observed (at p.181):
"In my view, the judge was right to lay stress on public policy considerations,
namely that claims must be brought expeditiously and, if not, they will be met
by the Limitation Act. The longer the delay, the more difficult it would be in
most cases to persuade the Court to disapply s. 11."
Applying those principles as I do, I can see no escape from the decisions that
I have arrived at in each of these cases."
Not surprisingly, since he is not a lawyer and is no longer legally
represented, Mr Margolis has formulated little in the way of legally structured
grounds of appeal against Wright J's decision. His proposed notice of appeal
says that it would be equitable to disapply the limitation provisions in his
case. His letter to the court, to which I have referred earlier, explains his
unfortunate and distressing personal circumstances. He explains his
difficulties in appearing before Wright J. on 23rd April 1999, when his wife
spoke on his behalf, Leigh Day and Co. having decided to drop his case together
with that of the other 52 claimants. He has been unable to find another
solicitor to take the case over. He was surprised that Leigh Day and Co.
dropped the case, when they knew that he had developed lung cancer many years
earlier and knew about the statute of limitations. He reckons that his case
was thrown out on a technicality; that the claimants' leading counsel said
nothing about his own particular circumstances; and that the questions that he
was asked in the witness box skirted round the matter but had no meaning as far
as his case was concerned. He was in difficulties in applying for legal aid
without a solicitor.
Mr Margolis has sent the court a copy of a video which he taped from a
television programme. He says that this was in Leigh Day's possession but that
no mention was made of what he refers to as "its dramatic incriminating
contents" during the hearing. He considers that it ought to have been referred
to. It applies to cases brought in America, but he considers that the same
should apply to cases in this country. The video includes material to the
effect that, in Mr Margolis' words, "13 year old children were enticed into
taking up smoking to replace (as the man said) the thousands of Americans who
are dying of lunch cancer daily. They became hooked at an early age" and this,
says Mr Margolis, is what happened to him.
Mr Margolis says that he started smoking at the age of 14, mimicking his screen
idols and thinking that it was sophisticated and fashionable. In 1982, he
developed lung cancer and had a major operation. He had many weeks in hospital
and a long convalescence at home in the care of his wife. He was a shadow of
the man he used to be with no thoughts about money or responsibilities. He
only thought of surviving from one day to the next. His letter describes how
he had a lucrative business and a beautiful and valuable house. The thought of
suing the tobacco company never occurred to him or his wife at the time
although they knew that his illness was caused by smoking. He has survived
since the operation in 1982, but his business has declined and his assets have
dwindled so that he now has no assets, no business, no savings and finally no
house of his own. He is nearly 78 years old. His wife is about 10 years
younger than he. He is very concerned for her, if, as appears likely, she
survives him. They have had to move into a furnished flat and live on state
benefit. The change in their lifestyle has been tremendous. They are unable
to do most of the things which those of more fortunate means enjoy. Mr
Margolis considers that the evidence which the judge heard did not bring out
these matters and that the judge misunderstood or under-estimated the effect
which Mr Margolis' lung cancer has had on his existence. He has told us this
morning in particular that he did not manage to tell Wright J. of the extent of
medication which he was taking at the time of the hearing. He is highly
critical of tobacco companies and considers that they ought to be made to pay
compensation, as he understands they have in the United States. He explains
why he was not prepared to abandon his claim on the terms which other claimants
agreed with the defendants. He intends to stick up for his rights and asks for
the chance to win his case, against the wishes of what he refers to as "the
multi millionaire tobacco people", to set an example to young smokers who are
the victims of tomorrow and who will cost the National Health Service millions
of pounds. He concludes by saying that the court's help in this matter will be
much appreciated.
More recently, Mrs Margolis has written to the court on her husband's behalf
restating much of the content of her husband's letter. She too refers to the
video of the television programme. She emphasises the effects which her
husband's lung cancer and operation have had on their lives and of their wish
for compensation and to progress the litigation to bring home to young people
in particular the risks of cigarette smoking. She has also told us that their
recent difficulties have been increased by their not being able to take the
best care of her mother. She has shown us a photograph of the large house that
in their more prosperous days they enjoyed. She has explained that her husband
was quite unable to take proceedings against tobacco companies until they were
able to join the group which Leigh Day & Co. organised. She tells us that
she cannot understand how the Limitation Act can have the effect which Wright
J. decided.
It is impossible not to be moved by this letter and, as did Wright J., to feel
sympathy for Mr Margolis and his wife. The court is, however, obliged to
decide cases which come before it on legal principles, however hard the
application of those principles may appear to those who are personally
involved.
Section 33 of the Limitation Act 1980 gives the court, in this instance Wright
J., a discretion. The discretion is to be exercised by reference to all the
circumstances of the case and in particular to those matters, in so far as they
are relevant to a particular case, which are referred to in section 33(3). It
is a well known principle that the Court of Appeal will not interfere with a
judge's exercise of discretion unless it was exercised upon wrong principles,
by reference to irrelevant matters or in disregard of matters which ought to
have been taken into account, or unless it was plainly wrong.
In the circumstances that Mr Margolis is now unrepresented, I have considered
very carefully whether it could properly be said that Wright J. exercised his
discretion upon any material error of principle. I do not think it can. I
have no doubt that the ingenuity of a professional lawyer might find things to
say on this subject, but I do not think that this court would be persuaded.
Wright J. was very careful to consider all the circumstances. I have no doubt
that his judgment addressed all the principal considerations which leading
counsel on behalf of Mr Margolis and the other claimants put before him. He
systematically addressed each of the matters which section 33(3) of the 1980
Act requires. I do not consider that he took into account matters which were
irrelevant. Nor do I see that there are material relevant matters which he
failed to consider.
It is important in this context to consider the two main themes in Mr Margolis'
letter to this court. The first of these is that Mr Margolis' prosperity and
enjoyment of life have been very severely affected by his lung cancer, so that
he and his wife are now in the circumstances which he describes. Although Mr
Margolis suggests that the judge gave inadequate weight to this and that his
counsel did not bring it sufficiently to the judge's attention in evidence, the
judge did take these matters into account in that, in contrast with other
claimants, the judge said in the passage which I have quoted that these matters
produced for Mr Margolis a special damage claim to date of well in excess of
£100,000. The judge accordingly recognised that the prejudice to Mr
Margolis in not disapplying the limitation provisions was in this respect
rather greater than for other claimants whose damages claim might not be so
large.
Mr Margolis' second theme is his belief that tobacco companies ought to pay
compensation to those who have suffered from lung cancer as a result of smoking
cigarettes. That, as a general proposition, is one about which there may be
differing views; and no doubt Mr Margolis is not alone in thinking as he does.
However, in that general form the proposition is one of social commentary, not
of legal principle. The court has to examine individual cases upon legal
principles and it cannot ignore the effect of statutory limitation
provisions.
I do not consider that Wright J's discretionary decision was plainly wrong. On
the contrary, and sadly for Mr Margolis, I consider that it was correct. The
highlight reasons which, in my view, compelled the judge's conclusion are
these: firstly, the extent to which Mr Margolis' claim was brought out of time
was very substantial; secondly, the defendants did not in any real sense
contribute to that delay; thirdly, the basis for primary liability put forward
on Mr Margolis' behalf by expert lawyers was distinctly problematical;
fourthly, there were in his case, as in others, acute problems of causation;
fifthly, even if he succeeded in establishing a primary case, there was a
substantial risk that the claim might fail because he consented to, or
willingly assumed, the risk of injury from smoking, or a strong likelihood that
his claim would be substantially reduced by contributory negligence; sixthly,
it was almost inevitable that evidence which the parties, and particularly the
defendants, would be entitled to call would be significantly less cogent
because of the passage of time. In emphasising the highlight factors which
were against Mr Margolis' application to disapply the limitation provisions, I
do not overlook the prejudice to him in not being able to pursue his claim and
not being able to recover in his old age some of the prosperity and comfort
which he and his wife formerly enjoyed. The negative factors are, however,
cumulatively very strong and indicate to my mind that the judge's decision was
correct.
It is an anxious feature of this case that the application is made by an
elderly, frail and unrepresented individual in a case which he wants to be able
to bring against a multi-national corporation. The court's overriding
objective embodied in Part 1 of the Civil Procedure Rules 1998 includes, so far
as is practicable, ensuring that the parties are on an equal footing. In terms
of resources, Mr Margolis is clearly not on an equal footing with the
defendants. There is no way in which the court could at this stage correct
that imbalance. But its existence is not a reason for deciding substantive
issues other than in accordance with the law. Although Mr Margolis is now
unrepresented, when the case was before Wright J., he did at least have the
benefit of expert legal advice and representation apparently backed by
substantial resources. In addition, I have no doubt that he had the benefit of
advice from those lawyers in the immediate aftermath of Wright J's decision.
He no longer has that benefit, but I have done my best, so far as is consistent
with judicial impartiality, to consider his application from his point of view
and with a view to bringing out its strengths. I regret that my conclusion is,
for the reasons which I have given, that his application should be refused.
This would mean that Mr Margolis remains at theoretical risk of the defendants
seeking to enforce against him the costs order which Wright J. made. In
essence the order made him liable to pay his proportion of the costs of the
litigation, which I imagine would be something in the region of
1/50th of the defendants' assessable costs. I say "theoretical",
because I notice that this costs order permitted the defendants to defer
taxation until further order and allowed them to apply for an order for the
payment of a gross sum instead of their assessed costs. We have not heard from
the defendants, but I cannot imagine that they would want to recover any costs
in the circumstances of this case. I also imagine that they are by now out of
time for an assessment of these costs and so in practice could not seek to do
so without a further court order. In the unlikely event that they applied for
such an order, the court would be able to consider whether it was fair and just
to make any order.
LORD JUSTICE EVANS:-
I agree that this application has to be dismissed for the reasons given by May
L.J.
Mrs Margolis has asked us whether we can give leave for an appeal against our
decision to the House of Lords. We have no such power and so that application,
if her husband makes one, must be refused.
Order: Application dismissed.
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