Leigh, Day & Co senior partner Martyn Day originally thought the compensation claims of Japanese prisoners of war (PoW) was an “old fogeys” issue. Now he is on the verge of persuading the UK government into action which would force Japan into an embarrassing backtrack.
Day changed his mind after a visit almost six years ago from his uncle, Jack Gott, a Japanese PoW whose experiences in Singapore between 1942 and 1945 are still not discussed in Day's family. Gott asked his nephew to help the ex-PoW's campaign organisation, the Japan Labour Camp Survivor's Association.
The story since then has included a five-year legal battle which collapsed in the Tokyo courts last year, increasing public sympathy for the campaign, and the discovery of hidden documents detailing a Foreign Office hush-up.
Last week Day met with Foreign Office Minister Derek Fatchett to try to persuade the department to make a formal claim against Japan under Article 26 of the 1951 Peace Treaty with Japan, which guarantees that British ex-PoWs and civilian internees will receive war claims settlements which match those of nationals in other countries.
If Day is successful, he says the repercussions will be “so massive it's hard to imagine”.
He says it could lead to similar claims from the US, Australian, New Zealand, Dutch, Chinese, and Phillipino governments.
Japan has consistently refused to apologise for the atrocities committed in its camps during World War II – causing a public relations nightmare for Emperor Akihito last Summer when ex-PoWs turned their backs on him as he walked past, during a state visit.
While an article 26 claim might not force the Japanese government to say sorry, it could force the Japanese to give financial compensation to the 8,000 ex-PoWs and 2,000 ex-civilian internees.
Day wants £13,500 compensation for each of his clients, who received £76 when they returned to Britain in August 1995. He has now secured the backing of former Governor-General of Hong Kong Chris Patten, and shadow Foreign Secretary Michael Howard, a barrister. Both are writing to Foreign Office Minister Derek Fatchett, calling on him to pursue the claim.
Day decided to campaign for an article 26 claim after the discovery in the Public Records Office last year of Foreign Office documents from 1955 advising against such an action for political reasons, hitherto concealed from the public for 40 years.
The 1955 document advised that an article 26 claim was a possibility since both the Burmese and the Swiss had signed a more advantageous peace treaty with Japan, but advised against it for political reasons. The document also advised: “We should not of course give any publicity to this decision.”
Day accuses Foreign Office lawyers of consistently advising against an article 26 action to hide their lack of help for the ex-PoWs. He says: “If the Foreign Office says no to this action now, then that will be because it is totally biased and covering up for the fact it withheld information.”
Day, who is representing the ex-PoWs and civilian internees on a no win-no fee basis and stands to lose millions if they lose, is confident the Foreign Office will relent this time.
In December, the Prime Minister, Tony Blair, indicated a change of attitude when he stated in a letter to a PoW campaigner: “It would be wrong for us to perpetuate this bitterness down the generations.”
Day also claims public sympathy is increasing for the ex-PoWs and civilian internees, following publicity of the campaign during Emperor Akihito's state visit last year and the 50-year commemoration celebrations in 1995. There is, however, a chance Japan will argue the claim is out of time, in which case Day has obtained favourable preliminary counsel's opinion that the UK could challenge this in the International Court of Justice in The Hague.
Day is also representing lung cancer victims in a David and Goliath battle to win compensation from tobacco companies Gallaher and Imperial Tobacco, which supply about 80 per cent of the UK cigarette market, and has carved out a high-profile career by taking environmental cases.
The down-to-earth Yorkshire-born Day is regarded by his contemporaries as a committed and brave lawyer. Hodge Jones & Allen senior partner Patrick Allen describes him as “fearless, hard-working and creative”.
Day is now in the luxurious position of being able to choose to take on cases he is interested in, even if they are unprofitable.
He says he is “interested in bringing about change” and “has a strong sense of what is morally right”, although he later claims he “just enjoys shit-stirring”.
His life will be taken up for the next two years with tobacco litigation and the PoW case, although he is also a director of Greenpeace and an executive member of the Society of Labour Lawyers. Although he has strong political convictions, he has no desire to become an MP since he believes the work would be “pretty humdrum” and “the idea of spending months trying to persuade other MPs to back a cause does not appeal”.
The mischievous and ever-cheerful Day is, however, also very determined and says he does not give up on causes until he is either successful or there is no hope left. In this case, he has particular motivation. He says his most memorable moment was during the 1995 VJ commemoration celebrations, sitting with his Uncle Jack at a cafe overlooking the Thames fireworks display.