Re Taylor's Application
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE LAWTON |
| Judgment Date | 12 April 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0412-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 April 1972 |
[1972] EWCA Civ J0412-5
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls (Lord Denning)
Lord Justice Edmund Davies and
Lord Justice Lawton
Mr. T.M. Eastham, Q.C., and Mr. Peter Slot (instructed by Messrs. Tringhams) appeared on behalf of Louise Mason.
Mr. Hourie appeared in person.
Mr. Leon Brittan (instructed by Messrs. Goffey & Co.) appeared on behalf of Wendy Hayler and Margaret Hayler.
Miss Heather Steel (instructed by Messrs. G. Bay and Pigot Rhodes and Swalwell of Wigan) appeared on behalf of Keith William Bayman and Agnes Bayman.
Mr. Peter Cresswell (instructed by Messrs. Badham, Comlns & Main, agents for Messrs. Bliss Sons & Covell of High Wycombe, Bucks) appeared on behalf of Janet Maureen Ogilvle and Florence Georgina Ogilvle.
Mr. James Miskin, Q.C., and Mr. J.P. Harris (instructed by Messrs. Kimber Bull & Co.) appeared on behalf of the Applicant, Kenneth Arthur Taylor, the Special Next Friend, Respondent.
Mr. David Sullivan (instructed by Messrs. Wilkinson Kimbers and Staddon) appeared on behalf of the Defendants, Distillers Company (Biochemlcals) Ltd.
Between 1959 and 1961 the Distillers Company (Biochemlcals) Ltd. put on the market a drug called distaval which contained thalidomide. It was withdrawn in November 1961. The drug was recommended as a sedative. It was prescribed, amongst others, to women who were pregnant. Afterwards some of these mothers gave birth to children who were deformed. It was discovered that thalidomide, when taken by a pregnant woman, might cause deformities in the child. In England there were over four hundred cases. It was alleged by some that Distillers were at fault in distributing the drug distaval. In the ordinary way an action for damages would have to be brought within three yearsof the time when the cause of action accrued. These questions arose: When did the cause of action accrue? Would the ohild have a cause of action? Although the fault took place when the child was unborn but in its mother's body? I should have thought it pretty plain that a cause of action would accrue to the child as soon as it was born deformed.
The parents of 62 children brought actions within three years of birth against the Distillers Company (Biochemicals) Ltd., alleging that that company was at fault in that they did not make adequate tests before putting this drug on the market. But the Distillers Company (Biochemicals) Ltd. contended that they themselves were not at fault. They trusted the German manufacturers who had made tests and had done all that was reasonable to ensure that it was safe. The issues raised scientific questions of great complexity. The case would take a long time to try. The plaintiffs in those 62 cases were advised by leading Counsel, Mr. Desmond Ackner, Queen's Counsel - Mr. Justice Ackner as he now is. He advised that there were great difficulties in the way of the plaintiffs. We do not know how high he put the chances of success. Eventually a settlement was made on behalf of all those 62 children. In February 1968 the settlement was approved by Mr. Justice Hinchcliffe. Under it Distillers Company (Biochemicals) Ltd. agreed to pay 40% of the damages which would have been obtained if the defendants had been found liable. Afterwards damages were assessed or agreed in all the 62 cases. The average sum paid was £15,000 in respect of each of the 62 children. That comes to nearly £1,000,000 for those 62. I expect that, in making that settlement, the Distillers Company reckoned that the action, if fought, would involve great expense. It was estimated to last six months, with experts on each side, aswell as leading Counsel. The costs might eat up vast sums. The Distillers Company, no doubt, thought it better to pay large sums in compensation to the deformed children rather than as costs to the lawyers.
It was a term of the settlement that all allegations of negligence were unreservedly withdrawn, but it was realised that there were other deformed children on whose behalf actions had not been brought within the three years. When announcing the settlement, Mr. Kerr made this statement to the Court: "In view of this withdrawal (of the allegations of negligence), my clients have now asked me to say that, when the matters resulting from this settlement have been dealt with, they will be considering ways in which a substantial sum may be provided for the direct assistance of malformed children who do not benefit from this settlement."
The Distillers Company have taken steps to honour that pledge. They propose to form a charitable trust and to pay to trustees a total sum of £3,250,000 by instalments over a period of ten years. This is to be held on trust to be applied for the benefit of all the malformed children whose deformity was caused by the mother taking the drug thalidomide during pregnancy. The proposed trust has obvious fiscal advantages. Being a charity, it will be exempt from tax. The Distillers will not have to pay so much out of their own pocket, because much will be recovered from the State. The trustees are to be given a wide discretion to apply the trust fund for the benefit of the children. The deed expressly provided that "in exercising their discretion as aforesaid the trustees shall have due and proper regard for the differing needs and resources of and for the differing degrees of handicap or disability suffered by individual beneficiaries." Such is thetrust deed which has been prepared, but it has not yet been executed.
The settlement was made in February 1968. I have no doubt that the Distillers Company at that time thought that was an end of their legal liabilities. The remaining children, they thought, had no legal claim as more than three years had elapsed and they were out of time. The proposal of a trust was, in their view, a voluntary gesture on their part.
The Distillers Company soon found things were different. Very shortly afterwards the father of one of the other children, Mr. David Leslie Mason, took advice as to whether on behalf of his child, Louise Mason, he might be able to get over the time bar of three years. He relied on the Limitation Act of 1963, which enables a plaintiff in many a case to overcome the three-year time bar. Mr. Mason's daughter Louise was born on 23rd June, 1962. The mother did not see the child after it was born. It was kept from her and not shown to her. The child was born virtually with no arms or legs. The father gave instructions for the child to be kept away from his wife. She was sent first to a hospital; then, afterwards, to the Chailey Heritage in Sussex. That is a very good home for disabled children. Since that time Louise Mason has remained in the care and custody of Chailey Heritage, although she has made occasional vists to her father and mother for short periods at Christmas and during the Summer holidays.
On those facts Mr. David Mason was advised that his daughter had a good chance of overcoming the time bar, because, being in the Chailey Heritage, she was not "in the custody" of her parents. So time did not run against her. That would seem to follow from Hewer v. Bryant (1970) 1 Q.B. 357, which was approved by the House of Lords in Todd v. Davison (1971) 2 W.L.R. 898. Mr. Mason applied ex parte to the High Court for leave under the 1963 Act; and was given it. Mr. Mason's example was followed by many other parents who felt, on one ground or another, that they could over-come the time bar. For instance, there was a little boy, Keith Bayman, who was born deformed. The radius bones of both arms are missing; both thumbs are missing: both hands are set at an angle to the arms, making the infant "club-handed". There is an almost complete loss of function in arms and hands with no prospect of improvement. The mother says that, when the child was born, her doctor told her it was not due to any drug but was due to "inherited factors". That doctor died in 1967. Then, in April 1968, she went to another doctor. He told the mother that the child was a thalidomide baby and the drug that she had taken was in fact distaval. On that evidence, it would appear that the mother did not know the material facts until April 1968. So she had a good case for overcoming the time bar. She also was given leave under the 1963 Act. The little boy, I am glad to say, is doing very well at school, and, despite his deformities, has a reasonable prospect of useful life ahead of him.
Those are just two cases out of many. We are told that there are 260 cases in which leave has been given by the Courts under the 1963 Act and in which the parents are going ahead in the hope that they will be able to overcome the time bar. Apart from those 260 families, there are another 114 familes who claim that they have had a thalidomide child, but have not yet obtained leave under the 1963 Act to apply to remove the time bar. That makes 374 children who may be thalidomide children.
Many...
To continue reading
Request your trial
-
Bailey v Warren
...acting unreasonably in withholding his consent, steps can be taken to remove him and appoint another litigation friend in his place: Re Taylor's Application [1972] 2QB 140 If the court is asked to approve retrospectively the compromise of a claim belonging to a patient, the question arises......
-
Marley et Al v Mutual Security Merchant Bank & Trust Company Ltd
...further on the decisions of the Court in Re Birchall (1880) 16 Ch.D. 81, Re Barbour's Settlement Trusts [1974] 1 All E.R. 1138 and Re Taylor's Application [1972] 2 All E.R. 873. All three cases dealt with application to approve compromises where infant beneficiaries were concerned. In Re Bi......
-
MacLeod v. Harrington, (1995) 69 B.C.A.C. 1 (CA)
...refd to. [para. 145]. Birchall, Wilson, Re v. Birchall (1880), 16 Ch. D. 41 (C.A.), consd. [para. 161]. Taylor's Application, Re, [1972] 2 All E.R. 873 (C.A.), consd. [para. Barbour's Settlement Trusts, Re, [1974] 1 All E.R. 1188, refd to. [para. 164]. Harrington (Guardian ad litem of) v. R......
-
Hyde Park Residence Ltd (Plaintiff) v David Yelland and Others
...[1905] W.N. 122 ; [1906] W.N. 51 9 [1916] 1 Ch. 261 10 (1906) 23 RPC 725 11 [1973] RPC 765 at page 783 12 p.783 13 [1968] 1 QB 396 14 [1972] 2 QB 369 15 [1985] QB 526 16 [1969] 1 QB 349 17 [1972] 2 QB 84 18 [1977] 1 WLR 760 19 [1981] AC 1096 20 p.269 21 p.268 22 p.275 23 (1980) 147 C......
-
Lawyers, advocacy and child protection.
...7.14-7.18); 'litigation guardian' (Uniform Civil Procedure Rules 1999 (Qld) rr 93-5); or 'next friend' (see, eg, Re Taylor's Application [1972] 2 QB 369; Rhodes v Swithenbank (1889) 22 QBD 577, 579 (Bowen and Fry LJJ)). (84) See Ventrell, above n 68; Fortin, above n 82. (85) See especially ......