Court told smoking claim would cause inquiry

A legal action brought by a smoker is so wide-ranging that it is "a mandate for a tribunal of inquiry to go on for 10 years into the tobacco industry", counsel for a tobacco company claimed at the High Court yesterday.

Mr Dermot Gleeson SC, for Benson and Hedges Limited, was making arguments in support of a motion brought to dismiss proceedings for damages taken against the company by Ms Mary Manning. The motion is one of several brought by tobacco companies seeking to halt 16 actions brought against them by smokers.

In her proceedings, Ms Manning, who was diagnosed with emphysema in 1995, is seeking damages, including aggravated damages, for personal injuries, assault and battery, and fraud and conspiracy.

She claims she began smoking in 1948 at the age of 16 and was induced to continue smoking over some five decades when the defendant knew or ought to have known that cigarettes were damaging her health.

She claims that the cigarettes allegedly manufactured by the defendant are poisonous agents in that cigarette smoke contains over 4,000 chemicals, many of which are known to be carcinogenic or mutagenic and that the defendants had caused, permitted and allowed these cigarettes to be consumed by her, thereby causing assault and battery to her body on each occasion she smoked.

Benson and Hedges Limited is seeking to have the proceedings, which were initiated in 1998 with a statement of claim delivered in late 2002, dismissed on grounds of inordinate and inexcusable delay in bringing them which delay, the company says, has gravely prejudiced its right to a fair trial.

The 16 smokers have also brought motions against the companies seeking judgment in default of the companies' failure to date to file defences to the smokers' proceedings. The companies say the delay in filing a defence is due to the plaintiffs' failure to properly particularise their claims for damages.

Yesterday, Mr Gleeson said Ms Manning's statement of claim was very generalised and made very wide ranging claims extending from before 1948 to 2004. He said the balance of justice was against allowing the action to proceed because his client was seriously prejudiced in that persons who could give evidence of relevant events in the tobacco industry were dead, elderly, infirm or living outside the jurisdiction.

Counsel also argued that Ward and Fitzpatrick, solicitors for Ms Manning, had made no pretence of even excusing the delay.

There was no hint that any experts had been retained by the plaintiff's solicitors relating to issues of causation of emphysema or that advice was sought regarding litigation dealing with the smoking of cigarettes and whether that might be linked to emphysema.

There was "just silence" from the plaintiff's solicitors regarding what was going on, Mr Gleeson said. It was difficult, as a High Court judge had found when dismissing proceedings brought by another smoker, to avoid the conclusion that nothing at all has been done, he said.

The hearing of the motions before Ms Justice Finlay Geoghegan continues today.