Tobacco giant tries to block lawsuit legal aid

Janice Pou died in 2002, aged 51, after smoking up to 30 cigarettes a day.

Tobacco giants have been accused of trying to crush a lawsuit against them by cutting off legal aid to the children of a lung cancer victim suing them for $330,000.

Brandon and Kasey Pou want to continue their dead mother Janice's damages claim against British American Tobacco (NZ) and its subsidiary WD and HO Wills (NZ), the first compensation case filed by a cancer victim against the tobacco industry in New Zealand.

But the tobacco companies yesterday applied to the High Court in Wellington for a judicial review of the decision to allow Mrs Pou's adult children to effectively inherit her legal aid grant, as the executors of her estate.

If the legal aid is stopped, the court was told the compensation claim would have to fold because the Pou children cannot afford to take the court action themselves. It is the first time a party to a civil lawsuit has gone to court to challenge the other party being awarded legal aid.

Mrs Pou, of Invercargill, died in 2002 aged 51, after smoking up to 30 cigarettes a day since she took up the habit in 1968.

She was granted legal aid a month before she died after filing a lawsuit claiming compensation for loss of enjoyment of life, and loss of expectation of life. Much of the legal argument yesterday centred on whether the legal aid grant to Mrs Pou survived her death and could be amended to be used by her children, or if it ceased when she died.

The court was told the tobacco companies had from the outset actively involved themselves in Mrs Pou's legal aid affairs, including by writing to authorities to ask if she had applied for the taxpayer-funded help even before she had.

The companies believed because any lawsuit would cost them vast sums, legal aid should not be approved.

The Legal Services Agency, which decides who gets legal aid, in court accused the tobacco companies of pursuing a strategy of trying to cut off Brandon and Kasey Pou's source of funding to stop the $330,000 compensation claim going ahead.

LSA lawyer Graham Taylor said all the arguments put forward by the tobacco companies were "elaborately" argued in written submissions to Mrs Pou's legal aid application.

The Pou's lawyer, David Collins, QC, said if legal aid was denied, they simply would not be able to take their case to the High Court at Auckland later this year. "If legal aid is not continued, the proceeding will stop.

"That is the practical reality," Mr Collins said.

Although the LSA initially told her children the grant had to end after Mrs Pou died, that decision was later reversed with the agency deciding it had the discretion to continue payments.

However, the tobacco companies yesterday disputed that.

Lawyer Mike Camp, QC, said the decision to amend the legal aid grant, rather than withdraw it completely, was wrong in law.

He said the Pou children should make a separate claim for legal aid if they wanted to continue the lawsuit.

He said under law, legal aid could be granted to a person but when Mrs Pou died it had to be withdrawn. While Mrs Pou's right to pursue action survived, her right to legal aid did not.

"It ceased, because Mrs Pou ceased," he said.

Mr Camp said the children were not just the executors of the estate, but the sole beneficiaries of it.

Mrs Pou was on an invalid's benefit when she died.

Justice Warwick Gendall reserved his decision.

Big smoke

British American Tobacco [BAT] is the world's second biggest tobacco firm with about 15 per cent of the market.

It sells nearly 780 billion cigarettes in about 180 countries.

The company's brands include Dunhill, Kent, Lucky Strike, and Pall Mall. The firm's total operating profit in the nine months to September last year was 1.6 billion, or $ 4.2 billion.

The company's third quarter report does not disclose NZ figures but says profit here was higher as a result of improved margins, reduced costs, and a slight increase in volumes.

Sources: BAT official website, Hoovers Online