BAT wins appeal and right to re-trial
BAT wins appeal and right to re-trial
The precedent-setting case of British American Tobacco versus cancer victim Rolah Ann McCabe is to be re-tried; after the Court of Appeal in Melbourne today overturned Justice Geoffrey Eames' judgement against British American Tobacco (BAT).
"The finding that Clayton Utz, through Brian Wilson, devised a strategy in 1990 in which BAT was advised that it could destroy documents relevant to anticipated litigation and assert an innocent intention was not justified."
In April of this year Justice Eames' threw the case of McCabe versus BAT out of court in what was one of the Court's most significant legal decisions and ordered BAT to pay Ms McCabe $700,000. This ruling (Read article on original case)could have a significant impact on record keeping practices in Australian organisations.
Justice Eames decided that because BAT could not produce vital research documents for the case, this prevented Ms McCabe from receiving a fair trial.
BAT was unable to supply Melbourne solicitors Slater & Gordon with documents they required for their client's case, despite having been able to produce the documents in a 1996 case.
Ms McCabe's case against BAT hinged on her being able to prove that BAT knew that the cigarettes she had been smoking since she was 12 would cause her cancer. The documents from the 1996 Cremona versus BAT case would have been used in the court case.
The Court of Appeal today decided that BAT had succeeded on all issues argued in its appeal. Allan Myers QC, representing BAT also defended the then lawyers of BAT Clayton Utz, saying that there was no basis for any finding that Clayton Utz was part of a conspiracy to destroy documents. Clayton Utz represented BAT in defence of BAT in the April case. In a statement, David Fagen, the chief executive partner at Clayton Utz, said he "welcomed" the decision.
"The finding that Clayton Utz, through Brian Wilson (the Clayton Utz solicitor that represented BAT), devised a strategy in 1990 in which BAT was advised that it could destroy documents relevant to anticipated litigation and assert an innocent intention was not justified," said Mr Fagen.
Ms McCabe succumbed to her cancer and died in October, yet the Court of Appeal has ordered a re-trial. John Galligan, the corporate and regulatory affairs director for BAT said;
"We are pleased the decision as we have always maintained that our defence in this case should not have been struck out in the first place," said Mr Galligan.
"We have never sought to deny anyone their day in court - all we wanted was to have ours and a chance to defend ourselves. We are pleased therefore with today's decision by the Court of Appeal," said Mr Galligan. He added, "What we can say is that we are pleased that the Court has brought back some fairness to what has been to date a very one sided look at the issue."
Peter Gordon, a partner at Slater & Gordon who represented Ms McCabe, said they would carry the fight on; and take it to the High Court.
Brendan Scott, a senior technology lawyer with Gilbert + Tobin said the decision of the Court of Appeal was not a surprise.
"It [the original ruling] was such an extreme consequence of their actions," Mr Scott said.
Justice Eames' original decision placed unprecedented legal important on document management principals.
"Whatever ellse can be said of it, the McCabe case stands as stern warning to anyone who underestimates the importance of their archiving and document management procedures. Inappropriate procedures can have dire consequences," said Brendan Scott in an article for Image & Data Manager.
A clear winner from the Court of Appeal decision is Clayton Utz, which has been exonerated.
"There was no evidence to justify the finding that Clayton Utz devised a strategy for the destruction of documents. The solicitors did no more than review the policy and give advice as to its legal consequences," said Mr Fagen of Clayton Utz. The law firm was the subject of a damming ABC documentary, and has since pulled out of representing the tobacco trade (read article) after a long relationship with the industry.
BAT claims that Justice Eames' decision caused the company to "suffer considerable damage" to its reputation.
"We hope this decision allows us to put forth our side of the story and repair the damage," Mr Galligan of BAT said.
Andrew Higgins, one of the Slater & Gordon solicitors that put Rolah Ann McCabe's case together (read how) told Image & Data Manager that they would be reviewing the case over the weekend and could not make a statement until after a full review.
A full report of the reaction from Slater & Gordon will be featured on the Image & Data Manager Web Site later in the week.
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