Examination of witness (Questions 250
- 259)
THURSDAY 25 NOVEMBER 1999
MR MARTYN
DAY
Chairman
250. Can I begin by welcoming you, Mr Day, and
thank you very much for your very helpful and comprehensive written
evidence to this inquiry, you have been most helpful in giving
us this. Would you like to briefly introduce yourself and say
a bit about your background so that the Committee understands
where you are coming from on this issue?
(Mr Day) My name is Martyn Day. I am a lawyer, joint
senior partner at Leigh, Day and Co, a law firm in London. There
are 80 or 90 people altogether in the firm and 13 partners. We,
at the firm, specialise in injury related cases almost exclusively
for the claimants. We were running the court cases in relation
to tobacco for about seven years.
Chairman: Thank you. I think you are aware probably
that this Committee did indicate its interest early on in this
Parliament in undertaking this inquiry but, of course, we were
advised that sub judice prevented it at that stage. There
were mixed feelings when the action came to an end because it
led to us being able to undertake this inquiry, as I am sure you
are aware. Can I also make clear that this Committee is one of
the few lawyer-free zones in the House of Commons, so if I ask
some rather naive questions about the background to the legal
case I do apologise.
Mr Burns: You always do that, Chairman.
Chairman
251. Could you clarify on the issue of the limitation
judgment, you mentioned in your evidence in paragraph six that
two-thirds of the 50 claimants were debarred by virtue of the
three year rule but obviously that left a third who were not.
I know a little bit about class actions but were you debarred
from pursuing the other third's interests for some reason?
(Mr Day) Clearly it was a major issue for us. Once
we received the Judgment of Mr Justice Wright we had two thoughts.
One was could we appeal that decision in relation to, I think
it was, 34 out of the 50 or so cases that we had. Secondly, could
we go on in any event in relation to the remaining 17 or 18 of
the claimants. On the first issue, the judge had wrapped up his
decision in a way that we all felt was going to be unappealable.
There are various different things you can do as a judge to make
it pretty difficult to appeal and probably he was a smart judge
and he had done that. On the second issue, clearly we could have
carried on on behalf of the 17 but there were two major problems
for us. One was that this particular judge had been allocated
for the trial. During the two week hearing that we had on the
limitation issue last December, a year ago, it was extremely clear
that this judge did not like the case. In any of these big difficult
cases the judge clearly takes a political view on it and you can
immediately get an impression as to where a judge is coming from.
From day one it was quite clear that this judge did not like this
case. The problem is when you have got a judge allocated to your
case and the trial a year away, you are facing an enormous uphill
task in actually turning him round and, secondly, you have got
all the prospects of being forced to pursue an appeal. My firm
by that time had spent about £2.5 million in the pursuance
of the action and looking at the balance, although obviously there
was a chance of success by that time it was pretty small, compared
to the costs and the risks to the individual claimants we felt
it was time to pull out.
252. You have not pulled any punches in what
you have said in your evidence about the way this case was treated.
I know that some of my colleagues have not had the chance to fully
consider this. You actually concluded, and I will quote this,
"It is a great shame that the decision made by Mr Justice
Wright meant that the Court case never went to a full trial. In
the USA the prospect of a full trial has forced their industry
into settling claims to the tune of $250 billion. In this country
the industry, protected by the more conservative British judiciary,
have probably escaped ever being put into the witness box and
will probably never have to pay out a penny for all the suffering
caused by their products. Having said all of this I need also
say that much of this evidence was before Mr Justice Wright at
the limitation hearing and he was totally unmoved by it."
That is quite strong stuff. Do you think that it is fair on Mr
Justice Wright?
(Mr Day) He gave his view, which was clear, that he
did not like the case, he was not going to exercise his discretion
on any of the individuals coming forward. He did not like the
case, full stop. What is clear in the States is having a system
with juries, where a jury is a much more indefinable group, the
American tobacco companies decided that when faced with a jury,
which tends by experience to be much more sympathetic to claimants
than certainly our judges, that rather than face that risk they
were prepared to resolve the cases by settlement.
253. You know as a lawyer that you can drop
lucky or you can drop unlucky. Are you of the opinion that you
simply dropped unlucky or do you believe that our system in a
sense prevents pursuing the kind of case that you were concerned
to pursue? Clearly there are wider issues here, as I am sure you
are well aware, that we are deliberating on in this place over
and above just the tobacco issues.
(Mr Day) As a general point I am very aware that the
nature of our judiciary is a very conservative animal. The whole
system in terms of how they are allocated, appointed, means that
we tend to get conservative people, with a small `c', in terms
of their nature who are much more inclined to protect corporate
interests than to progress the interests of the individual. The
difficulty of (1) the way the system operates in terms of judicial
appointments and (2) not having a jury system in terms of these
complex decisions means that we have had a whole series of cases
over the last 12 years or so, important significant cases in terms
of ensuring that corporate interests in this country are at least
brought to a full trial, not just this case but cases that have
never, ever reached trial which means that the corporate world
in this country is effectively protected by the judiciary. One
point on tobacco in particular. What I thought was fascinating
was that then we spent the last three or four years going through
document after document in the States and comparing it with what
was going on here, what one saw was that right from the 1950s
what worried the American tobacco companies was individual litigation,
the prospect of being pursued by American lawyers through the
American courts. That was never an issue in Britain. Right the
way from the 1950s, for fifty years, the tobacco companies here
have never been worried in the slightest, as far as I can see,
about the issue of litigation, they were always much more worried
about regulation and the rest of it. I think that is an indication
for me, and we have seen that in other areas, of how in America
the corporate interests are far more worried about their judicial
process than they are here.
254. Can I just reflect on one other part of
your evidence. I am sorry to have to read it but I think it is
so important that it needs to be read. In paragraph eight you
talked about "In negotiating a resolution to the action the
legal team was extremely anxious to ensure that the group of 50
or so claimants, (all in their 60s and 70s) were not bankrupted
by the British Tobacco Companies in their enforcing their massive
costs (that were around £15 million). The only way the British
Tobacco Companies would agree to release them from this burden
was if myself and John Pickering of Irwin Mitchell (the other
Claimants' law firm) gave personal undertakings, and the two firms
general undertakings, not to act in future tobacco cases."
This also refers to onerous undertakings that you felt you had
to give to protect the claimants and you signed them. What is
interesting to me is that you then go on to say, "In being
asked to give evidence before the Committee I asked the British
Tobacco Companies if they were prepared to release me from the
undertaking regarding my referring to evidence I have read and
they confirmed their agreement to this." Presumably that
was because of this Committee's powers to secure certain information
and presence, or were there other reasons?
(Mr Day) I assume that they did not want to get into
a conflict with you in terms of you demanding my presence here.
255. Where does that leave us in terms of what
we need to do as a Committee in exploring the concerns that you
have raised in this evidence?
(Mr Day) They have released me from the undertaking
that I have given them. In the end we gave three primary undertakings.
Those undertakings were: (1) not to encourage or to campaign actively
against the companies in any way; (2) not to encourage any further
case to be brought against them, or to assist in that; (3) not
to release any information that we have found that is not already
public. They have released me from that third undertaking in relation
to me here today in relation for this hour.
256. I find this absolutely incredible. You
have got an arm behind your back with the tobacco companies holding
that on the basis of you trying to protect those people who were
the claimants in this case.
(Mr Day) Yes.
Chairman: I find this a very worrying situation.
Mr Austin: On a point of procedure, if Mr Day
had not been released from that undertaking by the tobacco companies,
would they not be in breach of parliamentary privilege?
Chairman
257. This is a very good question. Do you feel,
sitting before us today, in any way constrained by virtue of the
position that you are in? We have a witness here who, as I say,
has got his arm up his back basically. This is the first time
that I can recall in the time that I have been on the Committee,
either in this session or the previous time when I served on the
Committee, that we have someone before us who is really constrained
in such terms. I find this quite incredible. Do you feel free
in your ability as a witness before this Committee to actually
communicate what you feel needs to be communicated in terms of
what this Committee should do in this inquiry?
(Mr Day) The one area that obviously I will have in
my mind as I am speaking to you, because I am not released from
this undertaking, is the words "The Plaintiff's legal advisers",
ie me, "undertake not to instigate or encourage any adverse
publicity campaign concerning the conduct or business of any of
the companies in relation to smoking and health". So when
you are asking me questions about what my views are in terms of
how you might go forward, I will have to have that in my mind.
258. You are a lawyer and this is a point that
John Austin raised about parliamentary privilege. In this Committee
you are protected by parliamentary privilege, as we are. As a
lawyer, do you not understand that enables you to say to us what
you feel you should say to us without any concerns about this
threat from the tobacco companies?
(Mr Day) That may or may not be so. You may be standing
beside me when I am taken to court and being held in contempt
in the sense that this is a court order document. It is always
open to the tobacco companies to take a view. I do not know enough
about the laws of parliamentary privilege to say whether they
could say that I was in breach of this undertaking and, therefore,
could still be held to be in contempt and therefore go down to
Pentonville.
Chairman: I honestly believe at this stage that
we need to adjourn this meeting because I think we are in a situation
here where quite clearly I do not want to in any way bring you
into difficulties, particularly in view of the work you have done
for these claimants. Although we have had advice from the Clerk
that you are cleared by absolute parliamentary privilege, I honestly
think that we are in a position where we need to adjourn, at least
temporarily, to take advice before we can pursue this matter further.
Can I suggest that we suspend for five minutes to take some action
to clarify this to ensure that we are not in any way putting you
in difficulties, Mr Day.
The Chairman then cleared the room for a private
deliberative session and, after a short time, the public session
was resumed.
Chairman: Can I apologise for the brief adjournment.
The Committee have agreed to make the following statement which
I think will be understood by those who were present at the earlier
session. The Committee sees the witness's evidence as vital to
this inquiry and wants him to be unconstrained in giving evidence.
Therefore, it will adjourn proceedings today and gain assurances
from the tobacco companies involved that they accept that Mr Day
and, if necessary, Mr John Pickering of Irwin Mitchell can give
full and unconstrained evidence to the Committee covered by parliamentary
privilege and, therefore, they will not be susceptible to any
further legal or other prejudicial action against them as a result
of any written or oral evidence given to this Committee. On that
basis the Committee will now adjourn. Thank you very much.
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