Hodgson v Imperial Tobacco Ltd
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR |
| Judgment Date | 12 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0212-21 |
| Docket Number | QBEN1 97/1386/E |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 1998 |
(In Liquidation)
[1998] EWCA Civ J0212-21
The Master of the Rolls
(Lord Woolf)
Lord Justice Aldous
Lord Justice Chadwick
QBEN1 97/1386/E
LTA 97/7148/E
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE POPPLEWELL)
Royal Courts of Justice
Strand
London WC2
MR D BRENNAN QC, MR ROBIN OPPENHEIM and MR R HERMER (Instructed by Messrs Leigh Day & Co, London EC1M 4LB) appeared on behalf of the Appellants.
MR J PLAYFORD QC, MR A PRYNNE QC and MR T RILEY-SMITH (Instructed by Messrs Ashurst Morris Crisp, London, EC2A 2HA) appeared on behalf of the First Respondent.
MR J FENWICK QC, MISS J TURNER QC and MR T WEITZMAN (Instructed by Messrs Simmons & Simmons, London EC2M 2TY) appeared on behalf of the Second and Third Respondents.
This is the judgment of the Court. The appeal is from an interlocutory decision made by Mr Justice Popplewell on 10 October 1997 in an action which the appellants have brought against three tobacco companies. The actions are for damages for the cancer from which the plaintiffs suffer which they allege was caused by smoking cigarettes manufactured by the defendants. The appeal raises two different issues.
The two issues are:
(1) Was the judge wrong to refuse to grant an order that "the defendants be debarred from seeking any or any further order that the plaintiffs' legal representatives be responsible for any and all of the costs of the action other than under section 51(6) of the Supreme Court Act 1981 and RSC O.62 r.11."
(2) Was the judge right to order that the directions made on 10 October 1997 and "any future directions made by the court in these actions may be released to the press, but the parties and their advisers are not to make any comments to the media in relation to this litigation without the leave of the court".
The issues on this appeal involve questions of principle which do not depend upon the facts of these particular proceedings. However, it is nonetheless desirable that we should say something as to the background of the appeal.
Background
There has been litigation against tobacco manufacturers in the United States for damages by those who allege that they have contracted diseases as a result of smoking. In July 1992 the plaintiffs' solicitors, Leigh Day & Co, made an application for legal aid on behalf of 227 proposed plaintiffs to bring proceedings in this country. In July 1996 the Legal Aid Board decided that legal aid would not be granted.
On 12 November 1996 Leigh Day & Co issued the first writ in the actions which are the subject of this appeal. This writ was subsequently followed by four others. There are currently approximately 43 plaintiffs. On 1 July 1997 the Senior Master was told that there would not be more than 50 plaintiffs. However on the application for directions which took place before the judge on 10 October 1997 there was an application to enlarge the number.
The plaintiffs are able to bring these actions because they have entered into conditional fee agreements ("CFAs") with their legal advisers. A lawyer entering into a CFA is unable to recover the costs of representing a client unless the action is successful. If it is they can receive an uplift which is agreed of up to 100% of what would otherwise be the amount of their fees.
The plaintiffs' claims are confined to a period between about 1957 and 1971. It is contended that excess tar caused or materially contributed to the plaintiffs' cancer. Applications have been made to the Senior Master for a judge to be formally assigned to the litigation but so far no formal assignment has been made.
However the litigation came before Popplewell J on 25 July and again on 10 October 1997 when he gave directions.
At the hearing on 25 July 1997 Mr Brian Langstaff QC, on behalf of the plaintiffs, raised the question of publicity. He said:
"My Lord, the only other matter which has occurred to us at the bar was whether your Lordship would wish to say anything as to the circulation as might be given to these directions as such, these proceedings being, as they are, in Chambers? My Lord, certainly those instructing me would wish to be able to refer to the directions, although they had no intention, may I make it plain, of making any press statement about them or the like."
The judge responded by asking:
"Well, unless anyone makes the objection I see no reason why the press should not be given a copy of these directions. Shall I take silence for consent?"
Mr Prynne QC, on behalf of Imperial Tobacco Limited, then indicated that the defendants would have no objection to the press being given a copy of the directions, as long as no comment was made about them. He added "The vice that tends to occur is when comments are made on one side which precipitate comments from the other and then litigation by media commences".
The judge made an order that the directions were to be given to the press and the press were also to be told that the judge "has ordered that neither party should make any comment on them".
While the defendants have not gone so far as to suggest that Mr Martin Day, who is the partner in the firm of the plaintiffs' solicitors who has the conduct of the action, is guilty of contempt in relation to that order, they do contend that he has acted contrary to its spirit. Accordingly the question of publicity was again raised on 10 October 1997 with the intention that the judge should make a more specific order than he had on the 25 July 1997.
From as early as the Autumn of 1996, the defendants' solicitors have been requesting the voluntary disclosure of the CFAs. According to the Skeleton Argument of the 2nd and 3rd defendants (whose arguments are adopted by the 1st defendant) the contents of the CFAs are relevant potentially for four purposes :
"(i) Upon the conclusion of the trial and/or in the event of the abandonment or dismissal of any claim, in deciding whether the court in its discretion should order that the costs of a successful defendant be paid by someone other than the plaintiffs themselves.
(ii) In deciding whether, given the number of plaintiffs, the costs of trial and the sums likely to be recovered, and the overall prospects of success, these claims are "viable" in the sense given to that word by the Court of Appeal in the case of A.B. v John Wyeth & Brother (No. 2) (26 November 1993) 18 BNLR 38;
(iii) In deciding at an interlocutory stage of the action what directions should be made for trial in the light of the cost implications of such directions and/or what orders for costs should be made.
(iv) In assessing whether in the respective CFA each plaintiff has agreed to bear contractual liability for costs of plaintiffs where claims are discontinued or dismissed before trial. In the absence of such a contractual liability no claim for one plaintiff's costs can be properly made by the solicitor for another plaintiff, nor can the other plaintiff include it in any claim for costs against the defendants. To do otherwise would be to offend the indemnity principle upon which Orders for Costs (subject to taxation) are founded".
The 2nd defendants also contend that they are extremely concerned by the nature of the litigation and that they have difficulty understanding on what basis it can be reasonably brought and considered viable. However they would not wish to assert that the plaintiffs' legal advisers should bear any liability for costs until they know the nature of the arrangements between those advisers and the plaintiffs.
From the correspondence which has taken place between the parties, it is apparent that the defendants have very much in mind that this is a case in which, in due course, they could decide to seek an order for costs making the plaintiffs' solicitors personally liable for the defendants' costs.
Shortly before the hearing on 25 July 1997, an additional firm of solicitors, Irwin Mitchell, were instructed to bring proceedings in related cases to those being conducted by Leigh Day & Co. On 23 July 1997, Leigh Day & Co wrote to Ashurst Morris Crisp, solicitors acting on behalf of Imperial Tobacco Limited, indicating that the two firms of solicitors were joining forces with regard to pursuing the generic cases and that all the cases were being dealt with under CFAs by solicitors and counsel, but no-one apart from the legal advisers were contributing to the funding of the action and that the details of the CFAs were the same for both firms.
Prior to the 10 October 1997 hearing, the plaintiffs' solicitors had been pressing the defendants to make their position clear as to whether they were going to make an application that the plaintiffs' solicitors should pay the costs personally. On 1 October 1997 Simmons and Simmons, the solicitors to the 2nd and 3rd defendants, faxed a letter to Leigh Day & Co saying that they could not reach a substantive decision on this point until "such time as we have had sight of the conditional fee agreements. Accordingly, we shall be inviting the court to make an order to that effect on 10 October 1997. It would obviously save considerable time and cost if you disclose the conditional fee agreements in advance of that application."
On the following day Leigh Day & Co faxed a reply in which they reiterated their contention that the CFAs were covered by legal professional privilege and the plaintiffs were not prepared to waive that privilege. They went on however to summarise the information...
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