Tobacco giant loses pounds 2m claim against widow

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A giant tobacco firm which demanded that a widow should pay pounds 2m in legal fees before she sued it over the death of her husband from lung cancer, lost its court action yesterday.

Lord Gill, at the Court of Session, Edinburgh, Scotland's supreme civil court, rejected the claims of Imperial Tobacco Ltd that Margaret McTear, of Beith, Strathclyde, should have to find the pounds 2m for expenses of the litigation.

Her late husband, Alfred McTear, who died of lung cancer aged 49, in 1993, had begun the legal action against the tobacco company, suing for pounds 100,000 when his disease was diagnosed. The action is regarded as a test case.

Mr McTear, who had been a cigarette smoker for 30 years, claimed that Imperial Tobacco should have known smoking caused lung cancer. He said that the company had failed to warn its customers of the dangers of smoking.

In the present action, Imperial Tobacco claimed that research needed to defend the case would cost pounds 2m and would take about 15 people two years to complete. It demanded security against the very real risk of incurring irrecoverable expenses.

Colin McEachran QC, for Mrs McTear, who is working for her on a no-win, no-fee basis, had earlier told the court: "Mrs McTear is clearly unable to meet even pounds 1m. She has little capital and a meagre income. Imperial Tobacco are making a mountain out of a straightforward case."

Yesterday, Lord Gill said in his written judgment: "Where a case can be seen to be hopeless the court is entitled and probably obliged to order caution [payment of some legal fees in advance]. But where, as in this case, that cannot properly be said, I consider that the court should be reluctant to make an assessment of the pursuer's prospects . . ."

Lord Gill said Mrs McTear worked in Littlewoods and had a widow's pension. She was not receiving funding from any source. She had been refused legal aid and her legal advisers were acting for her on a speculative basis. He added: "There is no hope of her finding caution in any significant amount".

The judge said that whatever the intention behind Imperial Tobacco's present legal action for Mrs McTear to find pounds 2m caution, the inevitable effect of its being granted would be that the damages action which she is pursuing against Imperial Tobacco would come to an end.

Lord Gill said: "In deciding on a motion of this kind, the court must have a proper regard to the avoidance of injustice to defender.

"But the court must also keep in mind the risk that if the pursuer's means or the defender's probable expenses, or both, were to be decisive of the question, a pursuer with a potentially valid claim might be denied access to justice."

The judge refused Imperial Tobacco's claims for Mrs McTear to put up the pounds 2m caution for legal expenses.

Mrs McTear can now go ahead with her pounds 100,000 damages action against the tobacco company.