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, reports Jon Robins

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. Last month, a landmark tobacco action went up in smoke in Scotland when a widow whose husband died of lung cancer failed to prove that Imperial Tobacco was to blame.


Sixty-a-day smoker Alf McTear began a legal fight some 13 years ago which was carried on by his widow, Margaret, who argued that that company that made the cigarettes was responsible for her husband’s death. Mr McTear gave up smoking in 1992 when he was told he was dying of lung cancer, and first instigated legal proceedings in January 1993, two months before he died at the age of 48. Last month, Lord Nimmo Smith, sitting in the Court of Session in Edinburgh, dismissed that case, ruling that it ‘fails on every issue’ and that Mr McTear knew what he was doing when he took up smoking in 1964. 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.


And the class action bought by Leigh Day and Irwin Mitchell ran out of puff without even making it into the courtroom. As part of the settlement, the two firms agreed to hold their legal fire in such cases for ten years. So is this the end of the road for UK tobacco litigation?


Martyn Day has not given up hope. ‘I have every intention of going to back to the drawing board one day and having another look,’ he declares. ‘It makes my blood boil that we have a system that allows them to get away with so much for so long. I am not alone in that feeling of anger that the judicial system has let down the smoking population.’


How would his fellow partners feel about taking on the tobacco industry again? His amnesty does not expire until 2008 and so, he says, they ‘will probably be relieved not to have to worry about it for a while’.


The Scottish ruling ‘doesn’t surprise Imperial Tobacco’, says its solicitor, Jacqueline Harris, a litigation partner at Scottish firm McGrigor Donald. ‘The difficulties the judge recognised were very clear and it’s a very robust judgment because it recognises the fundamental problems that any claimant is going to have,’ she says.


‘My own opinion is that those difficulties the case faced, both legally and technically, were such that it never had any reasonable prospects of success.’


The case was run on a conditional fee agreement without insurance and ‘the penniless widow’ (as press reports puts it) now faces bankruptcy. According to Cameron Fyfe, her solicitor and a partner at the Glasgow-based firm Ross Harper, the claimant team tried seven times to secure public funding aid. The applications, hearings, judicial review and appeals went on until 1996 before the substantive case could start properly.


The tobacco giant tried to make the claimant stump up a security bond, but this was rejected by the Court of Session in 1996. Mr Fyfe says that ‘in theory’ Imperial could enforce its costs against his client. ‘But all she has is a small house in Ayrshire which would be a small fraction of their total costs,’ he says. ‘For that reason, and also for reasons of public relations, I don’t think they would dream of enforcing it against her.’


Ms Harris says no decision has been taken. She points out that ‘the normal process is for expenses to follow success’. The smoking industry is keen to send out a tough message to dissuade any other ‘speculative’ claims. ‘We have never lost or settled any tobacco litigation and will continue to defend ourselves robustly against any further speculative claims,’ an Imperial spokesman says.


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 – but you don’t do this type of work for the money and I didn’t want to let down Margaret McTear by giving up half-way.’ The thought of bankrupting his elderly clients gave Mr Day ‘sleepless nights’ and since that experience his firm does not take on cases without after-the-event insurance. In its tobacco action, the firm was quoted a £4 million insurance premium.


The Scottish claimant team was left with having to prove its case against the tobacco industry, with its near-infinite resources, without public money. ‘We thought that we had produced enough evidence to show on the balance of probabilities that lung cancer is caused by smoking and we think we would have had a fair chance before an appeal court of showing that evidence was sufficient,’ says Mr Fyfe. ‘The judge took the view that there was no duty on the tobacco company to warn consumers that the product was dangerous back in the 1960s and we think as a point of law that was incorrect.’


A defendant lawyer who followed the litigation was unimpressed by the claimant’s case. ‘The trial judge was looking to have more epidemiology of primary sources available to him,’ he says. ‘The claimants could have done better putting forward their case.’


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.


They also called on the scientist Sir Richard Doll, now in his 90s, whose work in the 1950s is credited with establishing the link. ‘Our initial argument was that [the link] came within judicial knowledge but the judge said that it had to be proved,’ Mr Fyfe adds.


‘It’s difficult to pursue a primary tobacco claim – full stop,’ reflects Nick Pargeter, head of the disease claims special interest group of the Forum of Insurance Lawyers. ‘In this case the claimant was not even able to establish that cigarette smoking can cause lung cancer – and they had many other hurdles to overcome before they succeeded.’


With the success of litigation in the US, not to mention the state of medical knowledge, are the links between cancer and smoking not well established? If it is obvious, then the claimant lawyers should have had no problem making their case, the lawyer replies.


Mr Pargeter points out that Lord Nimmo Smith appears to have taken on board the House of Lords case of Tomlinson v Congleton Borough Council and others [2003] UKHL 47, where a swimmer ignored warning signs forbidding swimming in a flooded quarry. He misjudged his dive and broke his neck. ‘If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair,’ Lord Hoffman said. ‘There is an important question of freedom at stake.’


Lord Nimmo Smith noted the ‘difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves’. It reflects the individualist philosophy of the common law, he said.


‘There’s definitely a theme here,’ reckons Mr Pargeter. ‘Individuals have to take the consequences of their informed choice and if their informed choice is to smoke tobacco they have to accept the consequences of that.’


By contrast, Martyn Day argues that the tobacco industry has been let off the hook. ‘The judiciary has sought to put all the blame for what has happened on to the individual and the industry has no blame,’ he says. ‘That’s terrible and an indictment of our system. It shows it at its worst.’


Jon Robins is a freelance journalist