Anti-smoking links weakened tobacco claim case, says judge

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. Although he did not mention it in court, Prof Friend's CV also disclosed that he contributed to ASH financially in a "modest" way.

Lord Nimmo Smith said: "This coloured his views and the evidence which he gave to the court."

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."

McTear's husband, Alfred, a former telephone installer, began the action in January 1993 after being diagnosed with terminal lung cancer in 1992. He died aged 48 in March 1993 and his widow pledged to pursue his case, claiming Imperial Tobacco failed to warn him of the danger of smoking.

Her lawyers argued that, when Mr McTear started smoking in 1964, there were no warnings on cigarette packets and by the time they appeared in 1971 he was addicted. However, Lord Nimmo Smith ruled that the father of three knew what he was doing, that he smoked "roll-ups" as well as Imperial Tobacco cigarettes, and that McTear's lawyers had failed to prove that their product had caused his cancer.

The judge also criticised Professor Gerard Hastings, director of the Centre for Social Marketing and the Centre for Tobacco Control Research at the University of Strathclyde.

Last week's ruling has boosted insurers' hopes of successfully defending smoking litigation claims in the future. A further 120 cases have been dropped by the solicitors acting for McTear after their failure to win damages from the cigarette manufacturer.

However McTear's lawyer, Cameron Fyfe, who took the case on a "no-win no-fee" basis, said Lord Nimmo Smith's comments had failed to take into account the exceptional circumstances of McTear's claim.

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."

McTear was unavailable for comment.