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A Perverse Judgment—Thalidomide
Actions
EDITORIAL
The following leading article is transcribed verbatim
from
The Guardian
of 19 July 1973.
Five years ago more than 200 writs were issued against
the Distillers Company by parents of thalidomide chil-
dren. In the Court of Appeal on February 16 Lord
Denning found that these actions "had gone soundly
to sleep and had been asleep for the last four years."
No one had awakened ghem because both sides were
hoping for a settlement. The court therefore removed
an injunction placed by a lower court on the
Sunday
Times
forbidding publication of an article on the way
in which the drug had been developed and distributed.
Yesterday the House of Lords unanimously reversed
the appeal court's judgment and reimposed the ban.
After 12 years it is still not permissible to discuss in
public the circumstances in which thalidomide came to
be prescribed with such disastrous results. This is plainly
contrary to the public interest because if—and the word
if must be stressed—avoidable mistakes were made it is
important both for assessing present compensation and
for the future marketing of drugs that they should be
known about. At the time publication was proposed a
satisfactory settlement of the injured children's com-
pensation had not been reached. It is conceivable that
the
Sunday Times
article could at least have further
expedited a settlement since, as Lord Justice Phillimore
said in the Court of Appeal in support of Lord Denn-
ing, the so-called litigation was somewhat unreal. It
was shadow boxing dressed up as litigation.
Lord Diplock answered this criticism yesterday by
saying that litigants are entitled to the same freedom
from interference in negotiating the settlement of a civil
action as they are from interference in the trial of it.
This must ordinarily be true, but in the case of the
Distillers it is clear that the gap between the offer of
£3.25 millions and the recent settlement at £26 mil-
lions was bridged only because of the adverse publicity
which Distillers were receiving. In the eyes of most
people greater justice, not less, resulted from the action
of the
Sunday Times
in publishing its article of 24
September 1972, to which the article in dispute was to
have been a sequel. Indeed Lord Reid, delivering judg-
ment yesterday, commented : "If we regard this material
solely from the point of view of its likely effect on
Distillers I do not think that its publication in 1972
would have added much to the pressure on them
created, or at least begun, by the article of September
24. From Distillers' point of view the damage had
already been done. I doubt whether the subsequent
course of events would have been very different in their
effect on Distillers if the matter had been published."
Yet neither Distillers nor the Attorney-General pursued
the
Sunday Times
for contempt in the earlier article.
And, surprisingly, Lord Reid yesterday found against
that newspaper.
Lord Reid's is not an entirely illiberal judgment in
spite of its perverse conclusion. Discussing the sub
judice rules he says that "Surely public policy does not
require that a system of stop and go shall apply to
public discussion." And again : "There must be absolute
prohibition of interference with a fair trial but beyond
that there must be a balancing of relevant considera-
tions." And again : "As a general rule where the only
matter to be considered is pressure put on a litigant,
fair and temperate criticism is legitimate, but anything
which goes beyond that may well involve contempt of
court." And most importantly: "If the law is to be
developed in accord with public policy we must not be
too legalistic in our general approach. No doubt public
policy is an unruly horse to ride, but in a chapter of the
law so intimately connected with public policy as con-
tempt of court we must not be too pedestrian." These
sentiments are sound and difficult to reconcile with the
renewed injunction. It looks as though the law lords
dislike Lord Denning's judgment.
Lord Reid's emphasis is quite alien to that of Lord
Morris of Borth-y-Gest who says : "There can be no
such thing as a justifiable contempt of court." Lord
Reid in fact gives instances where "contempt," nar-
rowly defined, would be justifiable. Lords Morris and
Diplock are contemptuous of "trial by newspaper", but
this is an Aunt Sally. No responsible newspaper would
disagree with them. Trials should be settled in court
by appropriate and fair procedures. But this does not
mean that the administration of justice owes nothing
to what happens outside the courtroom. Justice, it
might be said, is divisible, and the role of the news-
paper is in providing evidence and occasionally in
pointing to malfunctions of the law. There has not, in
recent years, been a clearer case of this than the
thalidomide case. It was not the judicial process which
won the children their £26 millions. It was the busy
world outside.
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