Schering Chemicals Ltd v Falkman Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SHAW,LORD JUSTICE TEMPLEMAN |
| Judgment Date | 27 January 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0127-1 |
| Docket Number | 81/0043 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 1981 |
[1981] EWCA Civ J0127-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR. JUSTICE McNEILLT
Royal Courts of Justice.
The Master of The Rolls
(Lord Denning)
Lord Justice Shaw
and
Lord Justice Templeman
81/0043
1980 S. No. 4658
MR. ROY BELDAM, Q.C., MR. GAVIN LIGHTMAN, Q.C. and MR. JOHN POWLES (instructed by Messrs. McKenna & Co.) appeared on behalf of the Plaintiffs (Respondents).
MR. ALAN BISHOP (instructed by Messrs. Roiter Zucker & Co.) appeared on behalf of the First Defendants.
MR. OLIVER POPPLEWELL, Q.C. and MR. CHRISTOPHER SUMNER (instructed by A.M. Gostyn, Esq.) appeared on behalf of the Second and Third Defendants (Appellants).
Thames Television have made at much expense a film called "The Primodos Affair". It is about a matter of great public interest—the use of a drug called "Primodos". The makers of the drug want to stop the showing of the film. On the ground that it would be a contempt of court or a breach of confidence. The question for the court is: Should it be stopped or not? Or would the stopping of it be an unwarranted restraint on freedom of the press? In which I include, of course, television. It is an important question on which the law is not yet settled. But first for the facts.
1. THE FACTS
(i) The "Yellow Warning"
It often happens that, when a woman misses her period, she is anxious to know if she is pregnant or not. If she does not want a baby, she takes something which, she hopes, will bring on her period. In 1958 the word went round that a drug was available for the purpose. It was called Primodos. It was produced in Germany by Schering Chemicals and marketed in England by a subsidiary at Burgess Hill. Doctors prescribed it. Women took it. For nearly ten years it was considered safe. But in 1967 a lady doctor, Dr. Isabel Gal, threw doubt on it. She examined the children of one hundred women who had taken the drug as a pregnancy test: and the children of one hundred women who had not. On her reading of the statistics, she thought that the children of the women who had taken the drug were liable to have incurable ills like heart disease or spinal trouble. Her researches led to many investigations by many specialists. Research papers appeared in many scientific journals. Finally, in June 1975, the Committee on the Safety of Medicines in London issued a "yellow warning" against it. They thought it possible that the use of Primodos and similar drugs could on occasion cause abnormalities in the unborn child. They advised that a urine test should be used for pregnancy testing: in which there was then no risk to the unborn child. As a result of these warnings, the makers gradually gave up the drug and in January 1978 withdrew it altogether.
(ii) It is given full coverage
This was a subject of the greatest public interest. The newspapers and television companies gave it full coverage. The Sunday Times was particularly active. It had a medical correspondent, Oliver Gillie. He did much research himself. He got hold of a file of the internal correspondence of Scherings. (They said it had been stolen from them). It contained a letter from their medical director in England to their German headquarters, saying:
"I would like to call your attention to the fact that there is very little justification for the use of Primodos when a more rapid diagnosis may be made by means of the slide or tube test".
The Sunday Times published this Is letter and much other information. It did so in several issues in 1975 and 1978. These carried big headlines: "These drugs can deform babies but mothers are not warned"; "Hazard drug still sold in Britain": "Drug Company ignored deformity risk for ten years". Other newspapers followed suit.
(iii) A campaign is launched
Many parents of deformed children read these articles. They jumped to conclusions. One mother after another came forward and said such things as: "My child has a congenital heart. I took Primodos. I claim compensation". Campaigns were launched to support these parents. 172 claims were notified. Newspapers came out with headlines: "Two tiny tablets led to heartbreak": "Help these heartbreak kids": "200 may sue over baby pills". The redoubtable campaigner, Mr. Jack Ashley, M.P. took up their cause: just as he did in the Thalidomide cases.
(iv) Actions are started
Legal aid was obtained. Actions were started against Scherings. On the 19th September, 1977 by Williams; 21st March, 1978 by Hudd; 21st March, 1978 by Fletcher; 19th May, 1978 by Adams; 9th December, 1978 by Hyman. In two of these actions pleadings were delivered. On the 29th October, 1979 they were ordered to be set down for trial. The trial has been fixed for October 1981 and is estimated to last for six months. One of the principal issues is causation. These deformities are all to be found in children whose mothers did not take any of these drugs. Some of the complaining mothers may be deluding themselves in saying they took them. Another issue is negligence. Scherings deny that they were guilty of any want of care.
(v) Television programmes are shown
In addition to the newspapers, there were the television companies. On the 16th April, 1978 London Weekend Television showed a most informative documentary. It lasted about three-quarters of an hour. They had pictures of parents—Mrs. Hyman, Mrs. Wheeler and Mrs. Williams—and of their deformed children. These parents made statements of their belief that Primodos was responsible. The television showed experts, Dr. Isabel Gal and Professor Graham Dukes and two from the Pregnancy Advisory Service. They showed Mr. Jack Ashley, CH, MP. They had also the Rt. Hon. Roland Moyle, M.P., the Minister of State for the Health Service. In October 1978 Granada Television had a documentary. It again showed parents and children on much the same lines.
(vi) Scherings engage specialists
All this publicity was very adverse to Scherings. Yet they took no proceedings to stop it. Much of it was defamatory of Scherings but they issued no writ for libel. Some of it (such as the stolen correspondence) may have been an infringement of copyright or a breach of confidence by someone, but they issued no writ for infringement of copyright or breach of confidential information. Actions had been started on behalf of parents and children but Scherings did not suggest that these publications would prejudice the fair trial of those actions or were a contempt of court. No doubt Scherings considered—perhaps they were advised—that proceedings of those kinds would be unlikely to succeed.
The one thing that Scherings did was to try to mitigate the effect of the publicity. They decided to get their own executives trained in the techniques of television—so that they could put their point of view to the public. They approached a firm which specialised in training company executives. This firm was called Executive Television Training but it was really Falkman Limited run by Mr. Bernard Falk. They ran courses which were attended by the executives under training: and these were taught by professional broadcasters.
(vii) Confidentiality is assured
Scherings handed to Mr. Falk a great deal of information relating to Primodos. Mr. Falk studied it and made his own inquiries about it. He prepared a paper containing specific proposals for training the Schering executives. These proposals were accepted by Scherings on the 15th December, 1978. The fee payable was £10,750 plus VAT at 8 per cent. The course was to be held at the ICI Studios at Welwyn Garden City. The proposals contained this provision:
"We (Falkman Limited alias ETT) have received information on the company (Scherings) and in particular this deals with the product PRIMODOS.
"We wish to stress that this information, some of which is public and some of which is private, remains STRICTLY CONFIDENTIAL to ETT and will remain so whether a training programme is accepted or not. We also guarantee that it will never be used in the future by any broadcasting associate of ETT.
"According to the strict code of ethics laid down by the National Union of Journalists, of which our associates are members, the use of such information would be a severe breach of confidence".
(viii) The training course is held
The course was held on the 28th February, 1st March and 27th April, 1979. A training programme was prepared in which it was stated:
"Both the ETT panel and ICI studio staff have been informed of the CONFIDENTIALITY' of the course and this requirement is fully respected".
Falkman Limited engaged several professional broadcasters to train the executives of Schering. The training took many forms. One was to put an executive through a "mock" television interview. Such as to ask him, "What action did the Company take once suspicion was cast on Primodos?" The professional broadcasters necessarily acquired much information about the drug Primodos and all that had happened about it.
(ix) Elstein has an idea
One of the professional broadcasters was David Elstein. He got to know so much about this drug that an idea occurred to him. "Why not make a documentary film on the subject and call it 'The Primodos Affair'?" He got out a synopsis in May 1979 in which he outlined the contents of the film. On the 23rd May, 1979 he put it up to Thames Television Limited and suggested that they might...
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