Australia

The plaintiff, seriously ill with lung cancer, starting smoking the defendant's tobacco products at the age of 12. She alleged that BAT breached its duty of care to her by, amongst other things, failing to take steps to reduce or eliminate the risk of addiction in its tobacco products and by ignoring or publicly disparaging research results which indicated the health risks of cigarettes. The plaintiff brought an application to strike out the defence on the basis that BAT and its predecessor companies had destroyed relevant documents which rendered it impossible for the plaintiff to have a fair trial; BAT had misled the Court and the plaintiff as to the true situation concerning discoverable documents; and BAT had failed to comply with an order for discovery.

The trial judge found that in 1985 a "Document Retention Policy" had been created in anticipation that litigation would be brought against BAT's predecessor, WD & HO Wills, with respect to smoking and health issues. The primary purpose of that policy was to ensure the destruction of material which would be harmful to the defence of litigation. Further, words were inserted into the "Document Retention Policy" to assert innocent intention and to disguise the true purpose of the policy. The trial judge found that in 1990, after BAT took over the company, the policy was reviewed out of concern that litigation in Australia might lead to discovery of research reports that would be harmful to BATCO worldwide. BAT was subsequently provided with legal advice from the law firm Clayton Utz that it should destroy any damaging documents which were not in the public domain. Further, all sensitive documents should be held "off shore", or by other bodies and organisations, so that they could not be said to be under the possession, custody or power of BAT and therefore not discoverable. BAT complied with this policy. Subsequently, following the discontinuance of a tort case against it in 1998 (the Cremorna litigation), BAT destroyed thousands of documents which had been discovered as relevant in those proceedings, including a database and CD-ROM on which 30,000 documents had been imaged. The trial judge concluded that BAT intended by destroying documents that any plaintiff would be prejudiced in the conduct of their action and would be denied a fair trial.

The trial judge further concluded that the process of discovery was subverted by BAT and its solicitor, Clayton Utz, with the deliberate intention of denying a fair trial to the plaintiff, and that their strategy had been successful in doing so. The defence was therefore struck out and judgment entered for the plaintiff, with damages to be assessed.

Damages were subsequently assessed for the plaintiff in the sum of $700,000. However, this decision was overturned in the Court of Appeal: British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197.