Attorney General v Times Newspapers Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Diplock,Lord Simon of Glaisdale,Lord Cross of Chelsea |
| Judgment Date | 25 July 1973 |
| Judgment citation (vLex) | [1973] UKHL J0725-2 |
| Date | 25 July 1973 |
| Court | House of Lords |
[1973] UKHL J0725-2
Lord Reid
Lord Morris of Borth-y-Gest
Lord Diplock
Lord Simon of Glaisdale
Lord Cross of Chelsea
HOUSE OF LORDS
My Lords,
In 1958 Distillers Company (Biochemicals) Ltd. began to make and sell in this country a sedative which contained a drug thalidomide which had been invented and used in Germany. This product was available on prescription and was consumed by many pregnant women having been said to be quite safe for them. But soon there were cases of babies being born with terrible deformities. As such deformities do occasionally occur naturally, it took a little time to prove that these deformities were caused by the action of thalidomide in the unborn child at a certain stage of pregnancy. As soon as this was realised Distillers withdrew their product in 1961.
The matter attracted some publicity and the question arose whether Distillers were legally liable to pay damages in respect of these deformed children. Distillers denied liability and the first action against them was begun in 1962. Further publicity resulted in some 70 actions having been raised before 1968.
Claimants were faced by two difficulties. First there was a highly debatable legal question whether a person can sue for damage done to him before his birth. And secondly, an attempt to prove negligence by Distillers in putting this drug on the market would require long and expensive enquiries. The claimants combined to negotiate with Distillers, and early in 1968 a settlement was reached by which Distillers agreed to pay to each claimant 40 per cent. of the damages which he or she would recover if successful in establishing liability. Regarded from a purely legal point of view this appears to have been a very reasonable compromise.
Two cases were then tried by agreement to establish the proper measure of damages and ultimately 65 cases were settled, Distillers paying about a million pounds in all.
But many more cases gradually came to light. Leave to serve writs was now necessary and the first orders granting leave were made in July 1968. By February, 1969, 248 writs had been served. A few more followed. And there were many cases where claims had been made but no writs served. It may be that there are still some cases where claims will be made. In all there appear to be more than 400 outstanding claims not covered by the 1968 settlement.
Distillers proposed to settle these claims by setting up a trust fund of over £3 million. But they made it a condition of any settlement that all claimants should agree to accept it. The great majority agreed but five refused to do so. One parent at least refused because payments out of the trust fund were to be based on need, and his financial position was such that his child would get no benefit from such a settlement.
An attempt was made to compel these five to agree by having the Official Solicitor appointed to look after the interests of their children. But the Court of Appeal in April, 1972, reinstated these five parents ( In re Taylor [1972] 2 Q.B. 369). In June, 1972, Distillers made some new proposals but they were not accepted. There were then 389 claims outstanding and there seemed little prospect of an early settlement.
The Editor of “The Sunday Times” took a keen interest in this matter. He collected a great deal of material and on 24th September, 1972, that newspaper published a long and powerful article. Two general propositions were argued at some length: first whether those who put such drugs on the market ought to be absolutely liable for damage done by them, and secondly that in such cases the currently accepted method of assessing damages is inadequate. But the sting of the article lay in the following paragraph:
“Thirdly, the thalidomide children shame Distillers. It is appreciated that Distillers have always denied negligence and that if the cases were pursued, the children might end up with nothing. It is appreciated that Distillers’ lawyers have a professional duty to secure the best terms for their clients. But at the end of the day what is to be paid in settlement is the decision of Distillers, and they should offer much, much more to every one of the thalidomide victims. It may be argued that Distillers have a duty to their shareholders and that, having taken account of skilled legal advice, the terms are just. But the law is not always the same as justice. There are times when to insist on the letter of the law is as exposed to criticism as infringement of another's legal rights. The figure in the proposed settlement is to be £3-25 m., spread over 10 years. This does not shine as a beacon against pre-tax profits last year of £64-8 million and company assets worth £421 million. Without in any way surrendering on negligence, Distillers could and should think again.”
Distillers immediately brought this to the attention of the Attorney-General maintaining that it was in contempt of Court. The Attorney-General decided to take no action. But this did not in any way prevent Distillers from bringing the matter before the Court if they chose to do so. However they took no action.
I agree with your Lordships that the Attorney-General has a right to bring before the Court any matter which he thinks may amount to contempt of Court and which he considers should in the public interest be brought before the Court. The party aggrieved has the right to bring before the Court any matter which he alleges amounts to contempt but he has no duty to do so. So if the party aggrieved failed to take action either because of expense or because he thought it better not to do so, very serious contempt might escape punishment if the Attorney-General had no right to act. But the Attorney-General is not obliged to bring before the Court every prima facie case of contempt reported to him. It is entirely for him to judge whether it is in the public interest that he should act.
The Editor of “The Sunday Times” had in mind to publish a further article of a different character. As a result of communications between him and the Attorney-General regarding the article of 24th September, he sent the material for the further article to the learned Attorney and this time the Attorney-General took the view that he should intervene. By a writ of 12th October, 1972, he claimed an injunction against the Respondents, who own “The Sunday Times”, restraining them from publishing the proposed article. The Divisional Court granted an injunction but the Court of Appeal on 16th February, 1973, discharged the injunction. The Attorney-General now appeals to this House.
Before dealing with the arguments submitted to your Lordships I find it necessary to set out some general considerations which must govern the whole subject of contempt of Court. It appears never to have come before this House; there is no recent review of the subject in the Court of Appeal; and the circumstances of cases which arise in practice are generally not such as to require any detailed analysis of the law. I cannot disagree with a statement in a recent Report of Justice on the Law and the Press that the main objection to the existing law of contempt is its uncertainty. I think that we must try to remove that reproach at least with regard to those parts of the law with which the present case is concerned.
The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should in my judgment be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.
In Ambard v. Attorney-General for Trinidad and Tobago [1936] A.C. 322 Lord Atkin said:
“But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way; the wrong headed are permitted to err therein; provided that members of the public obstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
I think that these words have an application beyond the particular type of contempt in that case.
Discussion of questions of contempt generally begins with the observations of Lord Hardwicke in the St. James Evening Post case (1742) 2 Atk. 469. Dealing with a case where there had been gross abuse of litigants he said:
“Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard.”
and later:
“There are three different sorts of contempt. One kind of contempt is, scandalizing the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court in prejudicing mankind against persons before the cause is heard. There cannot be any thing of greater consequence, than to keep the streams of justice clear and pure,...
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