One of the conditions of the agreement is apparently that he cannot criticise the tobacco firms.
The action was taken under the "no win no fee" conditional scheme which is only just starting to spread in Britain. Martin Day alleges that the judge (Mr Justice Wright) was unsympathetic to their cause and the mounting legal bills on both sides meant that the litigants had to surrender albeit on terms which "lifted the cloud of bankruptcy from the heads of the aged cancer sufferers". It would appear that the greater financial resources of tobacco capital has resolved this matter.
Day goes on to make a wider point without using marxist language. He asserts that "mass claims, where industry stands to face an enormous bill if they succeed, are a fundamental part of our democracy. It is the way of ensuring that the ordinary individual, by forming a group with others affected, can gain access to justice; it equally ensures that industry is kept on its toes in how it deals with employees, what it sells to consumers and what pollution it pumps into the environment."
"US industries have to operate in a climate where any mistake can lead to them being enveloped in claims. Although this system has its critics, I do not sense, in looking at the vibrant state of the US economy, that these are problems their industry cannot take in its stride."
Concerning his own case in the UK, Day states:
"In trying to bring this case to trial, the plaintiffs and our legal team faced hurdle after hurdle: the withdrawal of legal aid, the gagging of the lawyers, the threat of bankruptcy for the legal team and costs orders making the claims unviable under the conditional fee scheme. The final hurdle was the court's decision to hear the industry's application to strike out the limitation cases (ie those not brought within three years of diagnosis) at a point when the tobacco firms had only just started providing us with their internal documents."
Day presents a David and Goliath picture under English law. He refers to the collapse of claims about side effects of contraceptives and of benzodiazepines after some £30 million pounds of legal aid had been spent. He refers to the power of the [capitalist] companies to attack claimants and lawyers through the media and parliament as shown from material leaked from Cape Asbestos on current claims by 1,500 South African asbestos victims.
He concludes, "If we are to have a society where the individual cannot be crushed by the might of the multi-nationals, the role of the judiciary must be to ensure the parties are fighting on a reasonably even playing field."
Comment:
this article marks a significant defeat in the attempt to spread US radical libertarian legal campaigns to the UK. In marxist terms it illustrates the inherent conflicts thrown up by competing clashes of bourgeois right, and the fact that such a system favours those with greater access to capital. Such libertarian campaigns on behalf of "the individual" have reached a momentum in the US where they have turned into their legal opposite: the holding to account by society of capitalist enterprises, monopolies, and cartels. It has not been legally or constitutionally insignificant that Clinton supported the States Attorneys General in their actions to recover costs of health care from the tobacco companies.
In the UK the New Labour government is only beginning to explore recouping the costs of road accident treatment from the insurance companies.
But logically one response to Day's article is that it would be in the public interest in the UK if there was government financial backing to test the case against the tobacco companies.
Concerning drug manufacturers it is ironic that crown immunity has been lifted in Britain from the National Health Service, but the hospital trusts do not have the freedom of manouevre of the drug companies to resist litigation. It was the previous Conservative Government that lifted this Crown Immunity as part of a political strategy to bring bourgeois right into the socialised health care system.
Day is clearly also fighting a political battle the other way round, to socialise the accountability for the production of commodities with major health implications.
As I have argued in my comments on the US HMO's the issue of defence against litigation, and insurance for this purpose is a technical but pivotal issue in the battle between the rights of capital and the rights of society.
We need a marxist analysis understanding the contradictory role of bourgeois right in these conflicts, partly progressive, partly reactionary, and to identify which side (easy) and which strategy and tactics (more difficult) to support.
Chris Burford
London