The Gazette 1973

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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