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Monday, March 01, 2010
  Reporting Parliament and Contempt of Court
It has been quite difficult to find any material in respect of the reporting of parliament. It is well known that reports of parliamentary proceedings cannot result in a defamation case.

It is also clear from the case that I will cite later that reporting parliamentary proceedings cannot be contempt of court.

This deals with the issue of the super injunction. In essence the work of John Wilkes in the 18th Century gave the right to report parliament save when expressly refused by parliament.

The key case is Attorney-General v Times Newspapers Ltd. Court of Appeal
16 February 1973 17 November 1972 [1972 H. No. 8335]
[1973] Q.B. 710 Lord Denning M.R. , Phillimore and Scarman L.JJ.
Lord Widgery C.J. , Melford Stevenson and Brabin JJ.
1973 Jan. 30, 31; Feb. 1, 2; 16
1972 Nov. 7, 8, 9; 17

The law
It is undoubted law that, when litigation is pending and actively in suit before the court, no one shall comment on it in such a way that there is a real and substantial danger of prejudice to the trial of the action, as for instance by influencing the judge, the jurors, or the witnesses, or even by prejudicing mankind in general against a party to the cause. That appears from the case before Lord Hardwicke L.C. in 1742 of In re Read and Huggonson (St. James' Evening Post Case) (1742) 2 Atk. 469, and by many other cases to which the Attorney-General drew our attention. Even if the person making the comment honestly believes it to be true, still it is a contempt of court if he prejudges the truth before it is ascertained in the proceedings: see Skipworth's Case (1873) L.R. 9 Q.B. 230 , 234, by Blackburn J. To that rule about a fair trial, there is this further rule about bringing pressure to bear on a party: None shall, by misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a cause so as to force him to drop his complaint, or to give up his defence, or to come to a settlement on terms which he would not otherwise have been prepared to entertain. That appears from In re William Thomas Shipping Co. Ltd. [1930] 2 Ch. 368 and Vine Products Ltd. v. Green [1966] Ch. 484 , to which I would add an article by Professor Goodhart on "Newspapers and Contempt of Court in English Law" in (1935) 48 Harvard Law Review pp. 895, 896.
I regard it as of the first importance that the law which I have just stated should be maintained in its full integrity. We must not allow "trial by newspaper" or "trial by television" or trial by any medium other than the courts of law.
But in so stating the law, I would emphasise that it applies only "when litigation is pending and is actively in suit before the court." To which I would add that there must appear to be "a real and substantial danger of prejudice" to the trial of the case or to the settlement of it. and when considering the question, it must always be remembered that besides the interest of the parties in a fair trial or a fair settlement of the case there is another important interest to be considered. It is the interest of the public in matters of national concern, and the freedom of the press to make fair comment on such matters. The one interest must be balanced against the other. There may be cases where the subject matter is such that the public interest counterbalances the private interest of the parties. In such cases the public interest prevails. Fair comment is to be allowed. It has been so stated in Australia in regard to the courts of law: see Ex parte Bread Manufacturers Ltd. (1937) 37 S.R.(N.S.W.) 242 and Ex parte Dawson [1961] S.R.(N.S.W.) 573 . It was so recommended by a committee presided over by Lord Salmon on The Law of Contempt in Relation to Tribunals of Inquiry: see (1969) Cmnd. 4078, para. 26.

Take this present case. Here we have a matter of the greatest public interest. The thalidomide children are the living reminders of a national tragedy. There has been no public inquiry as to how it came about. Such inquiry as there has been has been done in confidence in the course of private litigation between the parties. The compensation offered is believed by many to be too small. Nearly 12 years have passed and still no settlement has been reached. On such a matter the law can and does authorise page 740 the newspapers to make fair comment. So long as they get their facts right, and keep their comments fair, they are without reproach. They do not offend against the law as to contempt of court unless there is real and substantial prejudice to pending litigation which is actively in suit before the court. Our law of contempt does not prevent comment before the litigation is started, nor after it has ended. Nor does it prevent it when the litigation is dormant and is not being actively pursued. If the pending action is one which, as a matter of public interest, ought to have been brought to trial long ago, or ought to have been settled long ago, the newspapers can fairly comment on the failure to bring it to trial or to reach a settlement. No person can stop comment by serving a writ and letting it lie idle: nor can he stop it by entering an appearance and doing nothing more. It is active litigation which is protected by the law of contempt, not the absence of it.

Apply these considerations to the present case. Take the first 62 actions which were settled in February 1968. The newspapers can fairly comment on those settlements, saying that in making them the Distillers company did not measure up to their moral responsibilities. Take the last 123 children in regard to whom writs have never been issued. The newspapers can fairly press for compensation on the ground that Distillers were morally responsible. That leaves only the 266 actions in which writs were issued four years ago but have never been brought to trial. Does the existence of those writs prevent the newspapers from drawing attention to the moral responsibilities of Distillers? If they can comment on the first 62 or the last 123, I do not see why they cannot comment on these intervening 266. There is no way of distinguishing between them. The draft article comments on all the thalidomide children together. It is clearly lawful in respect of the first 62 and the last 123. So also it should be in respect of the middle 266.

I have said enough to show that this case is unique. So much so that in my opinion the public interest in having it discussed outweighs the prejudice which might thereby be occasioned to a party to the dispute. At any rate, the High Court of Parliament has allowed it to be discussed. So why should not we in these courts also permit it? There is no possible reason why Parliament should permit it and we refuse it.

The proceedings in the House of Commons
On November 29, 1972, there was a debate in the House of Commons on the thalidomide children. As the Attorney-General reminded us, we must be careful in speaking of it. The Bill of Rights says:
"... the freedom of speech, and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of parliament."
It is plain that Parliament has the exclusive right to regulate its own proceedings. What is said or done within the walls of Parliament cannot be inquired into in a court of law: see Bradlaugh v. Gossett (1884) 12 Q.B.D. 271 and Dingle v. Associated Newspapers [1960] 2 Q.B. 405 .
Nevertheless, I hope I may say this without giving offence: It is desirable that the convention of Parliament as to matters sub judice should, so page 741 far as possible, be the same as the law administered in the courts. The object of each is the same - to prevent prejudice to pending litigation and the parties to it - and the rules for achieving it should be the same, and for this very good reason: as soon as matters are discussed in Parliament, they can be, and are, reported at large in the newspapers. The publication in the newspapers is protected by the law. Whatever comments are made in Parliament, they can be repeated in the newspapers without any fear of an action for libel or proceedings for contempt of court. If it is no contempt for a newspaper to publish the comments made in Parliament, it should be no contempt to publish the self same comments made outside Parliament.
Take this very case. On November 29, 1972, speeches were made in Parliament and reported in the newspapers in which Distillers were said to be gravely at fault and not to have faced up to their moral responsibility. If the reports of those speeches were not a contempt of court, nor should the self same matter be a contempt when published in the form of an article.

In view of the debate which took place in Parliament, I feel sure that all present on that occasion must have accepted that the sub judice rule did not apply so as to forbid discussion. The reason was, no doubt, because none of these actions had been set down for trial or otherwise brought before the court. All that had happened was that writs had been issued in 266 out of 389 cases, and nothing more done. It did not appear that there was a real and substantial danger of prejudice to the trial of the cases. So the discussion was allowed to take place.
If we in this court apply rules as to sub judice which are on the same lines as Parliament, we shall not go far wrong.

The subsequent events
After the debate in Parliament, there was a spate of comment of all kinds. Some for Distillers. Others against them. In the "Daily Mail" of December 8, 1972, there was an article which was very critical of Distillers - on much the same lines as the article which "The Sunday Times" proposed to publish. No steps have been taken against the "Daily Mail." Seeing that all those comments have been let through without any steps being taken by anyone to stop them, it is plain to my mind that this injunction against "The Sunday Times" cannot stand. The proposed article is in the same category as all these others. It would be discrimination of the worst kind if "The Sunday Times" was the only paper to be stopped by injunction. But I would not rest my decision on this ground alone. I go back to last September when "The Sunday Times" submitted the article to the Attorney-General. Even at that time I think its publication would not amount to a contempt of court. The reason is because it dealt with a matter of the greatest public interest and contained comments which the newspaper honestly believed to be true. It drew attention to the moral responsibilities of Distillers for all the 451 children, and not merely the 266 who had issued writs. It did not prejudice pending litigation because that litigation was dormant - and had been dormant for years. No doubt the article was intended to bring pressure to bear on Distillers to increase their offer - but that pressure was legitimate in the light of all page 742 that had happened. It would be open to Distillers to reply to it. If they had submitted their reply to "The Sunday Times ," I should expect it to have received equal publicity. But, all in all, it was a matter which warranted debate, not only in Parliament, but also in the press. I would not restrict it.

I would only add this: fair comment is one thing. Unfair comment or unfair pressure is another. However good the cause - and however much the sympathy for the children - no one should resort to unfair tactics to force a settlement when they do not know - and cannot know - the rights and wrongs of the dispute.
But this article, as I see it, does not come into that category. It exerts pressure, but legitimate pressure. I would, therefore, allow the appeal and discharge the injunction.

PHILLIMORE L.J.
The Divisional Court granted an injunction on the ground that if the article prepared by "The Sunday Times" was published there was a serious risk that unfair pressure would be put upon Distillers to settle litigation or to settle on terms to which they would not otherwise have agreed. Questions such as whether pressure is unfair or whether there is a serious risk obviously involve important questions of fact.

If only because questions of fact are involved, I am troubled by the procedure which has been followed. The motion for an injunction was moved by the Attorney-General, who cannot know much about the facts. Moreover, there is no affidavit by any member of Distillers dealing with the facts. In such circumstances ought the court to speculate on what the facts may be, and in particular whether any pressure put upon Distillers is unfair?

In 1954 in Reg. v. Hargreaves, Ex parte Dill, The Times, November 4, 1953 , Lord Goddard C.J. said in terms that if there was any question of moving for attachment the motion should be made by the Attorney-General. Now, of course, in a criminal case, where the issue is between the Crown and a subject, there is obvious sense in an intervention by the Attorney-General, although I should have thought that if he refused to intervene, it should be open to the subject to move the court himself. In fact, the case in which Lord Goddard made that observation involved an article commenting on a criminal case, and was no authority for intervention by the Attorney-General in a civil case.

In a civil case, when the facts and issues are all important, why should the Attorney-General move? In the ordinary way it should be for the party who considers its interests affected to move the court. The Attorney-General should only move in some quite unusual situation when he thinks he should do so in the public interest.
What do we know about the facts? We have been told that Distillers started to manufacture and market the drug in 1958. The results were soon apparent, and by the winter of 1961, when the drug was withdrawn, over 400 thalidomide children had been born in this country. It is unnecessary to detail their deformities. Counsel has said that this was a national tragedy. I do not think that that is any exaggeration.
Some 62 parents started actions against Distillers. After lengthy page 743 negotiations these were settled in February 1968 on the basis that Distillers would pay 40 per cent. of the full sum which each case would have attracted in damages if liability was established. These sums have been paid and anyone is now free to comment on those proceedings and their outcome.

We were told that since then something like 260 other actions have been started. It is not clear whether any of these have proceeded beyond the stage of a writ issued pursuant to leave granted ex parte, save that it is said that in one case pleadings have been delivered. We do not know whether any of these actions, other than perhaps the one mentioned, is effective and can be brought to court.
We were told that there are something like 120 further claims which have been put forward in correspondence but, no writs having been issued, they would appear to be hopelessly statute-barred. Anyone is, of course free to comment on these cases, since they are in no sense sub judice.

As I said during the argument, I have no doubt that all this so-called litigation is somewhat unreal. No parent dares to bring one of these cases to trial for fear of losing, while Distillers are most unwilling to fight one of these cases lest they lose, when, quite apart from the moral obloquy, the damages might well be enormous. In a sense we are dealing with something akin to shadow boxing dressed up as litigation.

What, then, of the serious risk or the unfair pressure? I do not think that any party intends to bring any case into court - there is no evidence to the contrary - any more than there is any evidence as to what additional pressure this article would apply to Distillers if it were published.
Of course, the article - worded with skill - is in effect saying to Distillers: "You may or may not have some technical defence in law, but for the following detailed reasons you cannot deny that you were negligent. Here are these children now getting to the ages or 10 and 11, and their claims - to which there is no moral answer - are still unsettled."

Why - if this article exerts pressure - is it unfair? Here is a national tragedy which has lingered on for years. Whether Distillers were negligent or not (and they have not sworn they were not) they sold this drug with these terrible results.
I do not question that if a party to a genuine lawsuit is subjected to unfair pressure to force him to settle or to settle on terms on which he would not otherwise agree, there would be a contempt of court. But this problem is unique. We are talking of claims, many of which have never been the subject of proceedings. We are dealing with a matter of great public interest - a national tragedy.

I am not satisfied on the material before the court that there was any serious risk of this article compelling Distillers to settle or settle for more than they would otherwise have paid or that if any pressure would have been applied by it that that pressure was unfair. As I have said, they have not attempted to indicate in evidence what the effect of the article would have been.

Looking at the history of all this, a number of parents who must have been distraught and overwhelmed with worry have had to bring their claims against this powerful corporation. Apart from concern for their child or children, they have had the worry of being unable to plan for the page 744 future. On the other hand, Distillers have been able to sit back and wait while pressure on the parents has mounted until it may force them to agree to the terms Distillers have offered. How is pressure on this corporation unfair? In my opinion these claims ought to have been settled years ago and on generous terms.

I am, of course, very conscious of the mass of authority put before us by the Attorney-General showing that an attempt to stir up public feeling against a party is a serious contempt. In the ordinary case I would accept these authorities as binding, but, as I have said, this is no ordinary case. This litigation is dormant and has been now for several years. Both sides have displayed a masterly inactivity in its pursuit. Neither wishes to bring one of these claims into court. Delay exerts pressure upon the parents rather than upon Distillers. The whole problem is inevitably of public interest and rightly so. Is no one ever to be free to comment on such matters as the delay, the size of Distillers' offer or the question of their legal and moral responsibility? If it is true that Distillers are putting pressure on the parents, is no one to be permitted to say so and to give reasons for suggesting that pressure should be put on Distillers?

If in any single case I was satisfied that there was a real intention to bring the matter to court, I would not for a moment countenance an article designed to prejudice the public against a party or to put pressure upon that party so as to force a settlement. But this, as I see it, is not that sort of situation at all. In the absence of evidence that this is or that these are normal lawsuits and that the parties are prepared to bring their dispute before the court unless they can reach a fair settlement, I would not have ordered an injunction against the publication of this article.

However, since the judgment of the Divisional Court on November 17, 1972, matters have not stood still. The House of Commons debated the whole subject on November 29, and since then articles and comment have appeared in the newspapers, some in favour of Distillers and some against, including two articles in the "Daily Mail" which in effect reproduced the article prepared for "The Sunday Times" and banned by the order of the Divisional Court.

The Attorney-General has not moved the court in respect of any of these articles, and it is obviously quite unreal in this situation to continue the injunction. I would accordingly discharge it.
I desire to add a word or two in regard to the debate in the House of Commons since it was this debate that precipitated the flood of articles and has made the order of the Divisional Court impossible to maintain.

I am, of course, well aware that it is not for us to criticise in any way the conduct of a debate in the House of Commons. Article 9 of the Bill of Rights forbids me to do so; and, in any event, for the reasons I have already given, I cannot see that these claims ought in all the circumstances to be regarded as sub judice, and accordingly I see no possible objection to the debate.

It seems to me, however, that it is important that the sub judice rules applied in the House of Parliament and in the courts should be broadly in line. In fact, the House of Commons sub judice rules would seem to have been more restrictive of comment than those applied by the courts. Thus page 745 the Select Committee appointed to consider and make recommendations on matters sub judice in its report dated March 5, 1963,3 recommended:
"matters awaiting or under adjudication in a civil court should not be referred to in any motion or debate on a motion or in any Parliamentary question, including any supplementary question, from the time that the case has been set down for trial or otherwise brought before the court, as for example by notice of motion for an injunction: such matters may be referred to before such date unless it appears to the Chair that there is a real and substantial degree of prejudice to the trial of the case."
The report continued:
"In using the word 'prejudice' your committee intend the word to cover possible effect on the members of the court, the jury, the witnesses and the parties to any action."

Reading the evidence of the Speaker given to the committee, it is to be observed that he had in mind the possible effects of comment when one party had made a payment into court. The comment might destroy all hope of settlement.
These recommendations seem to me to be quite admirable. The limitation of all comment after a case has been set down for trial is eminently sensible. It goes beyond the rule of the courts which would apply the test of "real and substantial degree of prejudice" to a comment made even after that stage - a stage when there is every indication that the parties intend to bring their dispute before the court, but this is right. Anything said in Parliament is liable to be widely reported and therefore it is all the more important to be careful as to what may be said.
In short, however, as it seems to me, no one could seriously suggest that the debate transgressed the recommendations of the Select Committee; and to attempt to maintain this injunction in the face of what has been said in Parliament would not merely be an idle exercise, but would mean that the courts were seeking to impose a standard at variance with that imposed by Parliament. I should regard such a situation as deplorable.

For these reasons I would allow this appeal and discharge the injunction ordered by the Divisional Court.
SCARMAN L.J.
In my opinion, this injunction should be discharged. I have had an opportunity of reading the judgment of Lord Denning M.R. Since I agree with it, I propose to add only a very few comments of my own, limited to the pending actions and to the relationship between the courts and Parliament.
The pending actions
Distillers (Biochemicals) Ltd. withdrew the thalidomide drug from the market in 1961, when evidence was coming forward of terrible deformities page 746 suffered by children whose mothers had taken the drug during pregnancy. Some 60 writs were issued on behalf of children who, it was claimed, hat been born deformed because of the drug. By 1968 their cases were settled. But public apprehension continued to mount: in particular many thought the settlement was grossly inadequate.

In the same year, encouraged no doubt by the public agitation, the parents of other grievously deformed children issued writs against Distillers. By the time the Attorney-General applied for this injunction, 266 writs had been issued and some 120 further claims notified. This court knows very little about the litigation thus begun, but two futures are star tingly clear: each writ is out of time unless it can be brought within some exception allowed by the Limitation Acts; and each case, if fought, will have to meet formidable difficulties of proof. The reality of the situation, therefore, is that no one expects a trial: the writs were issued as moves towards a settlement. and it is obvious from what we were told in the course of the appeal that an overall settlement is very likely in the reasonably near future.
If the writs had not been issued, nothing could have prevented publication of the proposed article. Speech is free subject to the safeguards of the law of libel and slander: and, if an editor (as in this case) is prepared to justify, no injunction will issue to stop him publishing. The defamed person's remedy is only in damages after the event, if in fact the published matter turns out to be untrue.

Does the issue of these writs make such a difference? Does a writ put a stop to comment that could otherwise be made with freedom? It all depends. It is not the writ that matters but the situation that develops thereafter: and in any event the issue of a writ cannot stifle all comment, but only some in certain circumstances.
Contempt is an interference with the course of justice. It is necessary, therefore, to prove that the course of justice is being actively pursued. A writ is the formal act which begins a civil action. But not every writ is followed by further legal proceedings: very often a writ is no more than a step in a tactical maneuver designed to help towards a settlement. Since there is in this case no evidence of any litigation actively in suit, it is being unrealistic to treat this article as constituting a real or substantial danger of prejudice to the course of justice; which, as Lord Denning M.R. has shown, is, when considered in conjunction with the public interest in freedom of speech, the test for contempt. Further, these writs are only a minor feature in a situation which deeply disturbs the nation, and in which the public have a very great interest in freedom of discussion. I believe a valuable approach to the problem of contempt of court when the issues raised are of great public moment is to be found in a passage from the judgment of Owen J. in Ex parte Dawson [1961] S.R.(N.S.W.) 573 , 575: the judge said:
"... if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a lawsuit, it does not follow that a contempt has been committed." and then, a little later: "The discussion of public affairs ... can't be required to be suspended merely because the discussion ... may, as page 747 an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant."
Parliament
"... the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of parliament."
So declares article 9 of the Bill of Rights.

Parliament has an absolute right to forbid publication of its proceedings. But when, as at present, Parliament publishes its proceedings and puts an official report on sale to the public, it is the duty of the court in an appropriate case to inform itself of what goes on within Parliament. The present is an appropriate case. On November 29, 12 days after the judgment of the Divisional Court, the House of Commons debated a motion drawing attention to the plight of the thalidomide children. It is clear that the House was not inhibited from discussing the sort of questions that "The Sunday Times" would raise in the article, if published. It is also clear that the Commons took the view that their debate did not transgress their own sub judice rule. The courts, subject only to the legislative power of Parliament, determine what constitutes contempt of court and have a discretion as to remedy and punishment. Nevertheless, a serious and, perhaps, dangerous situation could arise if the practice of the courts differed substantially from that of Parliament. On the view of the law taken by Lord Denning M.R., which I share, such a situation is unlikely to arise. It is, I suggest, the duty of the courts, in an area which enjoys the attention of both Parliament and the courts, and where discretion is a major element in the process of decision, to note the practice of the two Houses of Parliament and to act in harmony with it, so far as the law allows. For myself, even if I had thought the Divisional Court to have come to a correct decision on November 17, the state of public discussion following the Commons debate is such that I would have thought it right to discharge the injunction in the exercise of the court's discretion.
*March 1, 1973. The Appeal Committee of the House of Lords (Lord Pearson, Lord Diplock and Lord Simon of Glaisdale) allowed a petition by the Attorney-General for leave to appeal.
 
Comments:
WOW John very impressive and exeptionally researched!!!!

Also Great work with the Standards and Privileges Committee, and to their conclusion, hard work does pay off sometimes.
 
IIRC that case is concerned with sub judice rather than an injunction so it's not an exact parallel.

There would in my view be theoretical circumstances where it would be just to restrict reporting of parliamentary proceedings if there was a gross breach of privacy or confidence for example which would involve the MP in a a breach of the privileges of the house (and subject to sanction by them - which can IIRC extend to detention!).

As an example suppose an MP was engaged in a protracted and unpleasant divorce proceeding and there were restraints on the publication of certain of the details. It would be wrong if those could be circumvented by the MP referring to them in the house.

The Bill of Rights would prevent there being any restriction to stop him/her but that doesn't extend to journalistic coverage.

As I said - it's a theoretical point as for an MP to so abuse the privilege for their personal advantage would raise a number of issues for them
 
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