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Despite the government's anti-smoking bluster, the big tobacco companies live a charmed life in Britain, especially in the courts. You can't sue them and win. . . .
Five decades after British studies first raised the link between smoking and cancer, smoking is still treated only as a health- policy issue. The law, and the government, have remained silent on the actions of tobacco companies and their executives, even though three of the largest companies in the world - BAT, Imperial Tobacco and Gallaher - are based in Britain.
This month, the government began trumpeting a major consultation exercise to get the public behind anti-smoking legislation banning smoking in public places. Behind the spin is another story, the story of a government and legal establishment unwilling and unable to take on the cigarette-makers. Now, attempts to bring the companies to account privately through the courts have been dealt a severe, possibly fatal, blow. It is a case history of the charmed life still led by tobacco companies in this country. . . .
What is striking about the internal documents held at Guildford, according to Jeff Collin, a lecturer in global heath policy at the London School of Hygiene and Tropical Medicine, is the bluntness of much of the language. The caution exhibited by executives of other Big Tobacco companies, choosing their words carefully even in internal memos, was apparently not shared by those working for BAT. "They put things on paper that others didn't," he said. Collin believes that BAT bosses felt protected by the British attitude towards litigation and corporate accountability, and by their own well-developed political connections. In a separate case, an Australian court heard that their bluntness even extended to putting down on paper discussions about destroying potentially incriminating documents. Some of these were used in the litigation against BAT, which said it had not broken any laws. Yet, outside the efforts of Collin and others, who are creating a website to provide better public access to the papers, where are the politicians' demands for an investigation? . . .
Although we do not have a Rico statute in this country, we have a plethora of laws on fraud and corruption. Why aren't they used?
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The case of a 60-a-day smoker that was stubbed out in court highlights the mammoth task facing claimant lawyers when they take on the giants of the tobacco industry . . .
Martyn Day, senior partner at London firm Leigh Day & Co and chairman of Greenpeace, offers the following anecdote to neatly sum up the difference between tobacco litigation on the two sides of the Atlantic.
When the claimant lawyer was preparing for his own ill-fated action on behalf of 50 smokers in the mid-1990s, he flew to Boston for a meeting with his US peers. As he disembarked from his plane - Virgin economy class - he saw a row of private jets lined up by the terminal building. 'It was when I got to the meeting that I realised they belonged to my brethren trial lawyers who have made an absolute mint from these cases,' recalls Mr Day. He was their 'poor country cousin', he adds.
While litigation on behalf of ailing smokers has made a generation of 'Lear-jet lawyers' in the US, it is not making anyone rich in the UK and such claims have yet to get off the ground in the UK. . . .
It took the judge 15 months to write a judgment weighing in at 1,121 pages and 350,000 words, after a 42-day trial. . . .
In the Leigh Day/Irwin Mitchell action, Mr Day once jokingly called their method of funding as 'no win, no fee and possible bankruptcy'. Mr Fyfe is putting a brave face on where the epic action leaves his firm. 'It didn't cost us much in terms of money but 13 years is a long time . . .
The claimant lawyers were clearly frustrated by their lack of resources. Mr Fyfe says they were forced to ask 'umpteen experts' to give evidence 'out of the goodness of their hearts' - but none came forward. They did have one former consultant in thoracic medicine, but his association with the anti-smoking group Ash meant the court did not consider him an independent expert.
IT has taken 13 months to write and is 350,000 words long, but Lord Nimmo Smith's judgment on the McTear case has left many disappointed. . . .
The judgment states: "I am prepared to accept that Mr McTear found it difficult to wean himself off his habit once he had started smoking and in that sense could be described as addicted. I do not accept that he was for this reason unable to stop smoking. The averment that tobacco is more addictive than cocaine is not proved." . . .
The judgment says: "There is no breach of a duty of care on the part of a manufacturer, if a consumer of the manufacturer's product is harmed by the product, but the consumer knew of the product's potential for causing harm prior to consumption of it."
THE judge who threw out a widow's landmark legal claim that a tobacco giant was responsible for her husband's death said unreliable witnesses undermined her case.
Margaret McTear last week failed to win damages from Imperial Tobacco. But in a damning criticism of the lawyers who acted for the 60-year-old, Lord Nimmo Smith said key witnesses' links with anti-smoking groups damaged her legal action's chances of success.
In comments buried deep in Lord Nimmo Smith's 514-page judgment, he stressed that expert witnesses had to be independent and that evidence given in McTear's case had been unsound.
He said: "All the expert witnesses for the pursuer [McTear] were or had been connected in some way with ASH [the anti-smoking group] and were clearly committed to the anti-smoking cause; and no doubt for this reason were prepared to give evidence gratis. By contrast, all the expert witnesses for Imperial Tobacco charged fees for their services." . . .
Lord Nimmo Smith, who ruled against McTear after a 12-year legal fight, was particularly scathing about the evidence of Professor James Friend, whose past connections with ASH included being acting chairman and an executive committee member of the anti-smoking group. . . .
The judge said Prof Friend had been giving evidence to further a health cause. "He did not meet the criteria that would qualify him as an independent expert witness on which the court could rely to give a balanced view on the issues in this case." . . .
He said: "We asked ASH to recommend anyone who could give evidence free of charge and we took the view that Prof Friend was an expert in his field, as a prominent lung physician. I don't think we could have got anyone better because we could not get legal aid to fight the case. I think it is unfair for the judge to criticise us when all that is taken into account."
All the expert witnesses for the pursuer [McTear] were or had been connected in some way with ASH [the anti-smoking group] and were clearly committed to the anti-smoking cause; and no doubt for this reason were prepared to give evidence gratis. By contrast, all the expert witnesses for Imperial Tobacco charged fees for their services.The flawless logic of Lord Nimmo Smith, in his 514-page ruling.
A LEADING anti-smoking campaigner has called on health boards to sue tobacco companies in an attempt to force them to compensate cancer victims.
Maureen Moore, chief executive of ASH Scotland, said a historic ruling yesterday showed ordinary people had no chance against the legal spending power of cigarette manufacturers.
She insisted health boards could bring money back into the NHS by using their resources to back a more successful campaign. . .
But the family's lawyer today said a future case could win and Ms Moore called on health boards to make that challenge. She said: "Mrs McTear was very brave, but the ordinary Joe Bloggs does not stand a chance against firms with vast resources to fight their case.
"Health boards have the resources to win a case now we have a clearer idea of what is needed."
A SCOTTISH judge yesterday dealt a devastating blow to the anti-smoking movement after dismissing a widow’s claim that a cigarette company was responsible for her husband’s death from lung cancer.
In a test case that could have opened up the floodgates for hundreds of similar claims, Margaret McTear had sued Imperial Tobacco for £500,000.
But yesterday’s ruling against Mrs McTear was so comprehensive that it raised doubts about whether an action against the tobacco industry could ever be successfully pursued in Scotland.
Cameron Fyfe, the lawyer who brought Mrs McTear’s case to court on a no win, no fee basis, immediately dropped 120 similar cases he had prepared.
Doctors’ leaders and anti-smoking groups condemned the decision, but Imperial Tobacco said it hoped it would dissuade other people from bringing similar claims. . . .
Lord Nimmo Smith said there was no evidence that Imperial had ever accepted a causal connection between smoking and disease, and the fact that it had never sought to challenge the public health message that cigarette smoking did cause lung cancer did not constitute such an admission. . . .
THE cigarette giant Imperial Tobacco yesterday warned it may force Margaret McTear to sell her home to pay part of its legal costs
Given that there are possible causes of lung cancer other than cigarette smoking, and given that lung cancer can occur in a non-smoker, it is not possible to determine in any individual case whether, but for an individual’s cigarette smoking, he probably would not have contracted lung cancer.Lord Nimmo Smith, in his McTear decision.
There is no breach of a duty of care on the part of a manufacturer if a consumer of the manufacturer’s product is harmed by the product, but the consumer knew of the product’s potential for causing harm prior to consumption of it. The individual is well enough served if he is given such information as a normally intelligent person would include in his assessment of how he wishes to conduct his life, thus putting him in the position of making an informed choice.
The widow of a man who died from lung cancer failed on Tuesday in her bid to sue British tobacco company Imperial Tobacco (IMT.L: Quote, Profile, Research) in the first ever UK smokers trial.
Alfred McTear smoked mainly Imperial brands and died, aged 48, of lung cancer over 10 years ago, months after filing his claim against Imperial. He started smoking in 1964, seven years before health warning labels were put on UK cigarette packets.
McTear's wife continued the claim which smokers and investors saw as a test case for thousands more.
The judge at the Edinburgh court threw out Margaret McTear's claim for 500,000 pounds ($911,700) damages and cleared Imperial Tobacco of responsibility for her husband's lung cancer. . . .
He had considered 30 days of evidence and 12 days of lawyers' arguments, resulting in a 350,000 word legal opinion. The 1121 pages take up four bound volumes.
Anti-smoking campaigners paid tribute today to the widow who took on one of the world’s biggest tobacco companies.
Margaret McTear from Ayrshire attempted to sue Imperial Tobacco, which she claimed failed to warn her late husband Alfred of the dangers of smoking cigarettes.
Maureen Moore, chief executive of pressure group ASH Scotland, said: “I’d like to pay tribute to Margaret McTear, for her to have held on for 12 years against Imperial Tobacco required determination and courage. Imperial did everything they could to deny her a day in court.
“Today’s ruling is a setback for those who want to see the tobacco industry held responsible for cigarette-related deaths due to the fact that they failed to warn consumers about the dangers of their product. . . .
“Imperial Tobacco still denies there is a link between smoking and lung cancer. Today we call on Imperial Tobacco to stop denying what the rest of the world accepts. . . .
“Imperial Tobacco argued in this case that the tobacco industry was not responsible for tobacco-related deaths of those who took up smoking before the introduction of health warnings on their cigarette packets.
“And yet today in the developing world, across Africa and Asia, there are 40 developing countries where there are no health warnings on cigarette packets. . . .
“Imperial Tobacco’s lack of a sense of sense of corporate responsibility is almost as deadly as the cigarettes they sell.”
Imperial Tobacco must accept that smoking cigarettes causes cancer and continues to kill millions of people around the world. . . . today in the developing world, across Africa and Asia, there are 40 developing countries where there are no health warnings on cigarette packets. . . . Imperial Tobacco’s lack of a sense of sense of corporate responsibility is almost as deadly as the cigarettes they sell.Maureen Moore, chief executive of pressure group ASH Scotland.
The widow of a man who died from lung cancer failed on Tuesday in her bid to sue Imperial Tobacco <IMT.L> in the first ever UK smokers trial seen as a test case for thousands more. . . .
The judge at the Edinburgh court threw out Margaret McTear's claim for 500,000 pounds damages and cleared Imperial Tobacco of responsibility for her husband's lung cancer.
"I'm disappointed because ... it means ordinary people will think twice about suing for damages," she told reporters outside the court. . . .
Her lawyer Cameron Fyfe said it had been a very difficult case pitting a lonely woman against a multinational giant.
"I think it is very difficult to pursue a case without funding against one of the biggest companies in the world," he told reporters. "We would want to appeal but it is just impossible. The costs would be tremendous."
He said the company has slapped a lien on Margaret McTear's three-bedroom terrace house, but he did not think they would pursue a claim for costs as it would bankrupt her. . . .
Delivering his judgment to a packed courtroom on World No Tobacco Day, Lord Nimmo Smith said every one of Margaret McTear's arguments had failed.
A widow whose husband died of lung cancer is to learn on Tuesday whether she has won a landmark court battle against a cigarette giant.
Alfred McTear, who smoked 60 a day, died of lung cancer at the age of 48.
His widow Margaret, from Ayrshire, is suing Imperial Tobacco for £500,000 in the first case of its kind in Britain.
She told the Court of Session he became addicted to smoking before health warnings appeared on cigarette packets. The firm has denied it was to blame.
Chief executive Gareth Davis argued that it has not been proven beyond doubt that smoking causes lung cancer.
It is the first smoking compensation case to go to a full hearing in the United Kingdom.
Floodgates may open
A LETTER from a politician about a historic damages case led yesterday to a furious judge reporting a senior lawyer for possible disciplinary action.
Allan Wilson, MSP, wrote to Lord Nimmo Smith about the time he has taken to give a ruling on a widow’s claim for compensation from a tobacco firm for the death of her husband from lung cancer.
In an amazing and angry outburst at the woman’s QC, Colin McEachran, who had suggested that she contact her MSP, the judge said he found the situation "reprehensible".
Lord Nimmo Smith took it as implying that he was not properly performing his duties. He accused Mr McEachran of thinking he knew better than the judge how to do his job, and suggested the QC had brought himself and his professional body, the Faculty of Advocates, into disrepute.
Mr McEachran insisted that he had merely given advice to contact an MSP, not that there should be direct communication with the judge. . . .
He had no doubt that Mr Wilson had written in good faith, but he continued: "What I find reprehensible is that Mr Wilson should have become involved at all. This can only have been designed to put pressure on me to issue my decision sooner than I might otherwise do... I regard this as wholly improper. The clear implication is I have not been applying myself as diligently as I should to my judicial duties."
Lord Nimmo Smith said he had given up a week’s leave to work on the judgment, and already had a draft of more than 860 pages and 250,000 words
Imperial Tobacco Group PLC said it expects the Scottish court to hand down its decision on the McTear case in three months.
The lawsuit, the first of its kind in the UK, was filed by Margaret McTear on behalf of her husband Alfred who died of lung cancer in 1993 at the age of 48...
Analysts fear the legal action, the first in Europe to have reached a full hearing, could lead to an avalanche of similar cases.
In Ireland, the tobacco sector is currently defending itself against 39 cases, Imperial said.
A judge is deliberating on whether a tobacco firm should pay compensation for the death of a smoker - a ruling which could make legal history. . .
Lord Nimmo Smith is due to make a judgement in writing within the next few weeks.
Submissions in the case closed at the Court of Session in Edinburgh on Friday.
Margaret McTear has claimed Imperial Tobacco failed to give adequate warnings about the dangers of smoking when her husband Alfred started smoking in the 1960s...
But in his closing speech, Michael Jones QC, for the tobacco giant, denied Imperials product was defective and said it was up to individuals to assess the risks involved when they smoked...
The case finally came before the Court of Session last year after a 10-year legal battle by the McTears.
It is the first of its kind in the UK and, if successful, could pave the way for thousands more similar claims...
Lord Nimmo Smith is expected to return his ruling on the case around April or May this year.