Attorney General v Times Newspapers Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE PHILLIMORE
Judgment Date16 February 1973
Judgment citation (vLex)[1973] EWCA Civ J0216-2
Date16 February 1973
CourtCourt of Appeal (Civil Division)

[1973] EWCA Civ J0216-2

In The Supreme Court of Judicature

Court of Appeal

Appeal by defendant from order of the Divisional Court of the Queen's Bench Division dated 17th November, 1972.

Between:
Before:

The Master of the Rolls (Lord Denning),

Lord Justice Phillimore and

Lord Justice Scarman.

Her Majesty's Attorney-General
Plaintiff
Respondent
and
Times Newspaper Limited
Defendant
Appellant

Mr. BRYAN NEILL, Q.C., and Mr. EDWARD AHEANE (instructed by Mr. James Evans) appeared on behalf of the Appellant Defendant.

HER MAJESTY'S ATTORNEY-GENERAL (The Right Honourable Sir Peter Rawlinson, Q. C.), Mr. GORDON SLYNN and Mr. NICOLAS BRATZA (instructed by the Treasury Solicitor) appeared for the Respondent Plaintiff.

Mr. JOHN WILMERS, Q. C., Mr. DAVID SULLIVAN and Mr. M. Edwards (instructed by Messrs, Wilkinson Kimbers & Staddon) held watching briefs on behalf of the Distillers Company (Biochemicals) Ltd.

THE MASTER OF THE ROLLS
1

THE MASTER OF THE ROLLS:

2

INTRODUCTION

3

Nearly twelve years ago an overwhelming tragedy befell hundreds of families in this country. Mothers when pregnant had taken thalidomide as a sedative to help them rest. All believed it was safe. The manufacturers had proclaimed it to be so. The doctors had accepted their assurances. But, unknown to anyone, if a pregnant woman took it between the fourth and twelfth weeks it would affect the limbs of the foetus in the womb. In consequence some 431 babies were born deformed.

4

Some without arms or legs. Others with gross distortions. Some of the parents were advised to bring actions for damages against Distillers (Biochemicals) Ltd. who marketed the drug. They had three years allowed by the Statute of Limitations in which to bring their actions. Only 62 of them did. In February 1968 a settlement was reached under which £1,000,000 was paid to these 62. Distillers, no doubt, thought that was the end of their legal liabilities: because, after the expiry of three years, the claims of the remaining 389 would normally be statute barred. Distillers must have realised, however, that they were not altogether clear of liability. A few parents, after the expiry of the three years, had got leave to bring actions out of time. These were still pending in February 1968 when the 62 actions wore settled. And more perhaps might follow. Eventually 266 got leave to issue writs out of time. But another 123 did not issue writs at all. That makes a total of 389 not provided for by the settlement. At any rate, Distillers, at the time of the settlement, recognised that they had a moral responsibility to those remaining 389 children who did not benefit from the settlement. So in February 1968 they announced that they would provide a substantial sum for the benefit of the otherchildren. To honour that pledge they later proposed to form a charitable trust and to pay to trustees a sum of £3,250,000 for the benefit of all the malformed children.

5

But this proposal failed to win acceptance: because Distillers insisted that all parents must agree to it. The great majority of the parents did agree to it. Many were hesitant, but agreed because they thought it was the best they could get. But five did not agree. They stood out. The majority tried to get the five to agree, but they would not. Much pressure was brought to bear on them. One of the majority actually brought proceedings to get the parents of the five removed as next friends, and to be replaced by the Official Solicitor, knowing that he would agree to the settlement. This Court refused to remove the parents of the five. We gave our decision on 12th April, 1972. It is reported as in Re Taylor's Application (1972) 2 Q.B. 369. It was the turning point in the whole matter.

6

The editor of the Sunday Times tells us that the report of that case caused him great anxiety. Over ten years had passed since the children were born with these deformities, and still no compensation had been paid by Distillers. He determined to investigate the matter in depth and to do all he could, through his newspaper, to persuade Distillers to take a fresh look at their moral responsibilities to all the thalidomide children, both those where writs had been issued and those where they had not. He bad investigations made and launched a campaign against Distillers.

7

On 24th September, 1972, the Sunday Times published an article headed "OUR THALIDOMIDE CHILDREN: A CAUSE FOR NATIONAL SHAME". It drew attention to the long drawn - out legalproceedings, and said: -

8

"It seems clear that in the new term lawyers acting for Distillers Biochemicals, who made thalidomide, will appear with lawyers acting for the children, to seek Court approval for a settlement which has been worked out in private over the last few months.

9

Unhappily the settlement is one which is grotesquely out of proportion to the appalling injuries the thalidomide children suffered.

10

Essentially the offer is that Distillers set up a trust for the children and their families, worth some £3.25 million.

11

This is not a large sum in the context of Distillers commercial operations (a little less than 10 per cent, of last year's after - tax profits, a little more than 1 per cent of the money made in the ten years since thalidomide."

12

As soon as that article was published, Distillers made a formal complaint to the Attorney - General suggesting that it was a contempt of Court. On 27th September, 1972, the Attorney - General asked the Sunday Times for their observations. On 28th September 1972, the Editor replied justifying the publication of the article. In addition he sent to the Attorney - General the draft of another article which he proposed to publish. It is the very one which is in question in these proceedings. It has not yet been published. But we have seen it. It contains a detailed analysis of the evidence against Distillers. It marshals forcibly the arguments for saying that Distillers did not measure up to their responsibility. Though, to be fair, it does summarise the arguments which could be made for Distillers. The Editor realised that this article - with its detailed analysis - was in a different category from the article of 24th September, 1972. So he wrote this letter to the Attorney - General: -

13

"I should be very grateful for any observations you may have upon it. You may take it that we are entirely satisfied with its factual accuracy in every respect but it is our intention to give the representatives of the parties the opportunity of commenting thereon before making a decision as to whether to publish it."

14

On 10th October, 1972, the Sunday Times delivered a copy of the draft article to Distillers: and invited their comments or objections. Distillers replied that the matter was receiving consideration, but they did no more,

15

On 12th October, 1972, the Attorney - General issued a writ against the Sunday Times claiming an injunction to restrain them from publishing the draft article. This step was welcomed by the Sunday Times as being "both sensible and constructive". So it seeded at the time, because it would enable the Sunday Times to see where they stood. But, as things have turned out, I think it was a pity.

16

THE MOTION OF THE ATTORNEY - GENERAL

17

The application is made by the Attorney - General, and not by the Distillers Company. I should have thought myself that it should have been made by the Distillers Company. After all, it is that Company which will be prejudiced by the publication of the proposed article. It is their litigation which may be affected by it. Yet we have no affidavit from Distillers telling us of the prejudice to them or of the pressures upon them by reason of the article. We have little knowledge of the state of the litigation or of the negotiations for a settlement. Before us Distillers instructed Mr. Wilmers, Q.C., with a watching brief. We allowed him to address us. He pointed out the serious errors which, he said, were contained in the proposed article. But he did not add to our knowledge of the state of the litigation or of the negotiations "or a settlement.

18

The Attorney - General explained why he had himself made the application. It was because of Regina v. Hargreaves which was reported in the Times newspaper of 4th November, 1953. A man was charged with conspiracy. A magazine contained an article about it. The man moved for a writ of attachment against theeditor. Lord Goddard, the Chief Justice, said: - "I have said on more than one occasion that it would be a good thing if such motions were made on the application of the Attorney - General…… Such motions should only be made by the law officers." Those remarks were made in regard to criminal cases. But they were interpreted as extending to civil cases in the Queen's Bench Division. In 1959 a committee presided over by Lord Shawcross recommended that no proceedings for such contempt "should be instituted except by or with the consent of the Attorney - General" - see the Report by JUSTICE on Contempt of Court (1959) page 34. Accordingly, since that time it has become the practice for the Attorney - General himself to institute proceedings. That is the reason, no doubt, why he did it in the present case.

19

I must say that I think the time has come to revert to the previous practice in regard to civil proceedings. In the civil courts the practice for well over two centuries was for the party to the action himself to make the application. He moved the Court to commit the newspaper for contempt. That was done in every case that I can discover. The notice of motion was entitled in the cause in regard to which the contempt had arisen, and it was made to the Court in which the cause was proceeding. That is to say, to the Chancery Division, the Queen's Bench or the Divorce Court, as the case might be. Thus in the divorce suit to which Mr. Parnell was a party, the application was made by the petitioner Captain...

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