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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Margolis v Imperial Tobacco Ltd [2000] EWCA Civ 114 (6 April 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/114.html
Cite as: [2000] EWCA Civ 114
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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
LORD JUSTICE EVANS
AND
LORD JUSTICE MAY
__________________________
MARTIN MARGOLIS
CLAIMANT/APPELLANTS
IMPERIAL TOBACCO LIMITED
first defendant
SECOND DEFENDANT
(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.