The applicant is a NORP citizen and sole heir and administrator of the estate of the late PERSON . She is represented before the Court by PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

According to the applicant , PERSON and his siblings , plaintiffs in action No . CARDINAL in ORG , became the registered owners of CARDINAL properties situated at GPE in the village of GPE , after a local enquiry of ORG for the purpose of widening a street , and after the death of the GPE mother , PERSON , on CARDINAL SeptemberCARDINAL .

Before that date the properties had been registered in the name of PERSON who had inherited it from his sister , PERSON , to whom the properties had been donated by their parents .

In DATE a certain PERSON filed action No . CARDINAL in the GPE ORG claiming that she and her husband , PERSON , were the owners of the properties by purchase and/or by long uninterrupted adverse possession .

On DATE the court made an order for a substituted service of the writ of summons on PERSON by publication of the writ in the newspaper the “ FAC ” , by posting a copy of the writ at CARDINAL coffee - shops in the village GPE ( where the properties were situated ) , by serving it upon a certain NORP PERSON of GPE and by posting a copy on the court ’s notice board .

PERSON and his siblings failed to enter a notice of appearance and , when the action was fixed for hearing , the case was dealt with in their absence .

Having heard the evidence of the witnesses , ORG was satisfied that PERSON had been in possession of the CARDINAL properties for more than the prescribed period , adversely , peacefully and uninterruptedly . On DATE the court ordered the cancellation of the registration of the properties in the name of PERSON and their registration in the name of PERSON , who subsequently had the plots registered in the name of his daughters by donation . Thereafter , one of the daughters mortgaged the properties in favour of ORG The writ of summons in action No . CARDINAL was never served on the plaintiffs who were at all times residents of GPE or GPE and whose address was unknown . They all had , however , a representative in GPE , Mr PERSON .

In DATE PERSON retired to GPE . When he discovered that the registration of the properties had been cancelled , he lodged action No . CARDINAL on DATE with ORG in order to have the judgment in action No . CARDINAL/CARDINAL set aside . He was joined in this action by his siblings . They maintained that the judgment had been obtained by fraud and that there had been a breach of the procedural rules concerning the summons to appear . They alleged that they should have been personally notified of the writ of summons .

On DATE ORG dismissed the action , referring extensively to NORP and NORP case - law on the matter . It held that , in deciding action No . CARDINAL , ORG had issued an order according to which the notification of the writ of summons was to take place by its publication in the “ ORG ” newspaper and a copy of it placed on the notice - boards of CARDINAL coffee - shops in the village of GPE , as well as that of ORG of GPE . In exercising its discretionary powers , ORG considered that such a notification was effective as the plaintiffs , whose nationality and address were unknown to the court , were abroad and the relevant documents , which had been sent to them by CARDINAL of their relatives , were returned undelivered . It concluded that , although this method of notification was not wholly efficient , it was important for citizens who had had their rights recognised by a court decision to be able to rely on such a decision .

In particular , as to the allegation that the default judgment was obtained by fraud , the court found that the plaintiffs had failed to prove the existence of any such fraud . As to the allegation that there had been a procedural irregularity in that a notice of a writ of summons instead of the writ of summons itself should have been served upon them , being non - Cypriots , the court held that such an irregularity would result in the annulment of the judgment ex debito justitiae . However , the court concluded that PERSON and his siblings had failed to produce evidence to establish that they were not NORP nationals .

The plaintiffs appealed to ORG which dismissed the appeal on DATE . ORG adopted the conclusions of ORG . It further observed that any procedural irregularity , which would have led to the proceedings in action CARDINAL being annulled , had become a “ mere irregularity ” by reason of the new LAW which was published on DATE and which ( in accordance with the case - law that followed ) had retrospective effect . This observation related only to the alleged irregularity that was brought about by the issue of the writ of summons instead of the issue of a notice of the writ . In any event , ORG dismissed the submission that there had been an irregularity with respect to the service of the writ , as PERSON and his siblings had failed to prove that they were non - Cypriots .

Finally , ORG held :

“ However , the respondents could submit to the ORG an application in action CARDINAL for setting aside [ the judgment ] , explaining the default of appearance as well as why such a period of time has passed until they took such a step [ filing the application ] and giving grounds for a prima facie case , so as to enable the ORG to exercise its discretionary power … The respondents did not follow such a course and no such issue was raised for determination . ”

Order CARDINAL , Rule CARDINAL of ORG reads as follows :

“ No writ of summons for service out of GPE of which notice is to be given out of GPE , shall be sealed without the leave of the ORG or a Judge . ”

Order CARDINAL , Rule CARDINAL of ORG provides as follows :

“ Any judgment by default , whether under this Order or under any other of these rules , may in a proper case be set aside by the ORG upon such terms as to costs or otherwise as the ORG may think fit . ”

Domestic case - law has made it clear that the primary consideration for the court of review is whether the defendant ’s case has merits to which heed should be paid ( PERSON v. ORG , [ DATE ] ORG CARDINAL ) .

More recent authorities have reiterated the principle as follows :

“ The effect of the case - law is that the court must not hasten to deprive a party of his right to be heard in his case , so long as he discloses merits . But the court may , nevertheless , decline to re - open the case if his conduct is such as to strike at the root of the administration of justice . Where the conduct of the party applying to set aside a judgment is inexcusable , contumacious , to the extent of grossly disregarding the judicial process or the rights of his adversary , the court may , in its discretion , refuse to set aside the judgment . ” ( NORP v. PERSON [ DATE ] CARDINAL CLR CARDINAL ) .

The Government stress that , in the context of an application to set aside a default judgment , the defendant does not have to show that he has not been personally notified of the proceedings in which the default judgment was delivered . He is only required to explain why he failed to appear in order to show that his non - appearance was not the result of any gross disregard for the judicial process .


The applicant is an NORP citizen , born in DATE and living in GPE . He was the husband of PERSON .

He is represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE PERSON was killed in a terrorist bombing in GPE . The cars used for the bombing were stolen in GPE in GPE on DATE .

The NORP authorities conducted extensive inquiries but were unable to bring charges against any person . The files remain open . ORG ( ORG ) in GPE has conducted an inquiry into the theft of the vehicle and related offences which did not produce any results . However , there was no formal murder inquiry by the ORG .

On DATE ORG , a television station in GPE , broadcast a programme in which the adequacy of the ORG inquiry was discussed .


KRONE-VERLAG GmbH and DRUCKEREI UND ZEITUNGSHAUS J. WIMMER GESELLSCHAFT mbH v. AUSTRIA

The applicants are CARDINAL companies incorporated in GPE . The first applicant company is the proprietor and publisher of the NORP DATE newspaper “ PERSON GPE ” , the second applicant company is the proprietor and publisher of the NORP newspaper “ ORG ” .

They are represented before the ORG by Mr T. Höhne , a lawyer practising in GPE .

A.

The facts of the case , as submitted by the corporate applicants , may be summarised as follows .

The application is directed against the DATE amendment to LAW ) concerning section CARDINALb on the “ protection of the presumption of innocence ” , which provides for a compensation claim against the proprietor of a news medium in certain cases of reporting contrary to the presumption of innocence ( see relevant domestic law , below ) .

In DATE the corporate applicants and other proprietors of news media instituted proceedings in ORG ) claiming that the impugned provision violated their right to freedom of expression , freedom of the press and their right to property , and also amounted to discrimination .

On DATE ORG dismissed their requests that section CARDINALb of LAW as a whole , or particular passages of section CARDINALb(CARDINAL ) of that LAW , be declared incompatible with their constitutional rights and thus null and void .

As regards the corporate applicants’ right to apply to ORG , the ORG recalled that , in order to be able to lodge a complaint under LAW , a complainant had to show that the legal provision constituted an immediate and not only a potential violation of the complainant ’s interests , and that there was no other reasonable remedy . Doubts as regards the compliance of legal provisions with LAW usually had to be raised in proceedings before the ordinary courts . However , no - one could be expected to commit an offence in order to have the opportunity to raise such doubts in the course of ensuing criminal proceedings . In the present case , ORG considered that section CARDINALb of LAW immediately restricted the corporate applicants’ freedom of expression and that there was no other reasonable remedy , as they could not be expected to contravene this provision and thereby cause proceedings under LAW .

In its further reasoning , ORG , referring to principles established by the case - law of ORG ( Sunday Times ( I ) v. the GPE judgment of CARDINAL DATE ; PERSON v. GPE judgment of DATE ) and to its own case - law , recalled that freedom of expression held a prominent place in a NORP society and that the press performed special tasks as purveyors of information and opinions of a political nature or of other general interest .

ORG found that section CARDINALb of LAW interfered with freedom of expression . It then turned to the question of whether this interference was justified under paragraph CARDINAL of LAW as being necessary for the protection of the rights of others and maintaining the impartiality of the judiciary .

Having regard to the corporate applicants’ argument that the strict prohibition under section CARDINALb of LAW was disproportionate in cases of predominant public interest , ORG recalled that the protection of the rights guaranteed under the Convention sometimes required the ORG to take positive measures .

In the Constitutional Court ’s view , the NORP legislator , in enacting the impugned provision , had complied with its constitutional duty to prevent that reporting in the news media , or possibly even a press campaign , stigmatised a person as guilty of a criminal offence and thereby rendered the presumption of innocence ineffective , thus prejudicing the fairness of the ensuing trial . In doing so , the legislator had acted within its margin of appreciation under paragraph CARDINAL of LAW . There was no justifiable public interest in denouncing persons as convicted criminal offenders , i.e. in having a “ trial by newspaper ” ( ORG ) , before they had been found guilty according to the law . Section CARDINALb of LAW was only concerned with press reports of such a nature and did not prevent true reporting about criminal cases .

ORG also found that , given the importance of the principle of the presumption of innocence , the exceptions enumerated in section CARDINAL ) of LAW and the choice of civil compensation instead of criminal sanctions , there was no indication of disproportionality . Furthermore , the abstract maximum amounts of fines for causing actual bodily harm or defamation by far exceeded the maximum amount of compensation fixed in section CARDINALb of LAW .

For similar reasons , ORG rejected the corporate applicants’ argument that there was a violation of their right to property , in particular in cases of a subsequent conviction of the person concerned .

The decision was served on DATE .

B. Relevant domestic law

Section CARDINALb of LAW ( Mediengesetz ) is entitled “ Protection of the presumption of innocence ” ( PERSON der Unschuldsvermutung ) and reads as follows :

“ CARDINAL . A person suspected of having committed an offence but not yet convicted by final judgment , who is portrayed in a medium as being guilty or as the perpetrator of the offence and not only suspected of having committed the offence , is entitled to claim compensation from the proprietor of the news medium ( editor ) for the insult suffered . The amount of compensation shall not exceed CARDINAL ORG ; …

There shall be no right to compensation if

( CARDINAL ) a true report about a hearing at a public session of ORG , ORG , ORG , the ORG of a Land or a committee of these general representative bodies is concerned ,

( CARDINAL ) a true report about a conviction at first instance is concerned which indicates that the conviction is not final ,

( CARDINAL ) the person concerned has made a confession in public or before a medium and has not revoked it ,

( CARDINAL ) a direct broadcast ( live broadcast ) is concerned and the employee of the broadcast has applied the care required of journalists ,

( CARDINAL ) a true quotation of the statement of a third person is concerned and if there was a predominant public interest in the publication of the quoted statement . ”


No violation of Art. 6-1;No violation of P1-1

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in the town of GPE . She works as a deputy head of ORG .

On DATE the applicant asked the LOC police department to institute criminal proceedings against her former husband , PERSON . , complaining that he had assaulted her . She provided a police investigator with a certificate from ORG no . CARDINAL . According to that certificate , on DATE the applicant presented herself at the hospital , where she was examined and diagnosed with injuries to the soft tissues of the head . The certificate also stated that the applicant did not have concussion .

DATE a forensic medical expert examined the applicant and issued a report which , in the relevant part , read as follows :

“ CARDINAL . On DATE of the examination , on DATE , [ the applicant ] has : CARDINAL bruises on the face , [ and ] an injury to the soft tissues on the left side of the parietal tuber . As it follows from medical documents , from DATE to DATE [ the applicant ] underwent treatment in the neurological department of ORG ; following her dismissal from the hospital she underwent outpatient treatment , consulting a therapist until DATE in respect of her diagnosis : “ concussion ” .

The concussion , bruises on the face , the injury to the soft tissues of the head sustained by [ the applicant ] were caused by blunt firm objects and are considered to have caused “ minor health damage ” requiring treatment for CARDINAL ....

It can not be excluded that those injuries could have been caused in the period indicated by [ the applicant ] ” .

On DATE ORG instituted criminal proceedings , finding as follows :

“ On DATE [ the applicant ] applied to the LOC police department seeking institution of criminal proceedings against her husband , PERSON . , on the ground that he had injured her on DATE , at TIME , in their place of residence ...

I see particular social importance in the fact that the injuries were caused by a man to a woman who can not offer adequate resistance ” .

On an unspecified date PERSON . was committed to stand trial before ORG of Tomsk .

ORG held several hearings at which it heard the applicant , PERSON . and a number of witnesses and examined documentary evidence , including CARDINAL reports by forensic medical experts . The applicant insisted on her description of events as given to the police and prosecution authorities . PERSON . disputed the accusations , denying that he had even visited the applicant on DATE of the alleged assault . He claimed that he had visited his female friend , PERSON , on DATE and spent TIME at her house . PERSON confirmed PERSON . ’s statement in open court . The defendant ’s alibi was also corroborated by his son , who claimed that he had spent DATE with his father before the latter had gone to see PERSON witness testified to having heard the applicant and PERSON . arguing in the applicant ’s flat on DATE of the alleged assault . CARDINAL witnesses stated that they had seen the applicant in TIME the day of the alleged assault or on DATE . The applicant had complained to them that PERSON . had beaten her up . CARDINAL witness , the applicant ’s neighbour , stated that the applicant had unsuccessfully asked QUANTITY persons to lie in court about PERSON . assaulting her . ORG also heard a doctor who had examined the applicant immediately after the alleged assault . The doctor insisted that the applicant had not had concussion .

On DATE the ORG found PERSON . guilty of assault and sentenced him to DATE of correctional labour . The sentence was suspended on probation . ORG also partly accepted the applicant ’s tort action against PERSON . and awarded her MONEY ( RUB ) in compensation for pecuniary damage and RUB CARDINAL in compensation for non - pecuniary damage .

Mr PERSON . and his lawyer appealed , arguing that there was no evidence that the defendant had beaten the applicant . He had an alibi which had been confirmed by CARDINAL witnesses . However , no witnesses testified to seeing the defendant hitting the applicant . The witnesses also did not state that they had seen the defendant in the vicinity of the applicant ’s flat at the alleged time of the assault . Furthermore , the lawyer argued that the presiding judge had unlawfully dismissed his request to step down from the case as the applicant ’s lawyer had supervised the presiding judge ’s Ph.D. work .

On DATE the ORG reduced the amount of compensation for non - pecuniary damage to RUB CARDINAL and upheld the remainder of the judgment , endorsing reasons given by ORG .

On DATE Mr PERSON . and his lawyer applied to the President of ORG , seeking institution of supervisory review proceedings . They once again insisted on the partiality of the presiding judge and the unavailability of evidence proving PERSON . ’s guilt .

NORP In DATE the President of ORG lodged an application for a supervisory review of the judgment of DATE , as amended on DATE .

On DATE ORG of ORG notified the applicant by letter that a hearing was scheduled for DATE at TIME The applicant was also invited to study the case file materials and to submit her observations in response to Mr PERSON . ’s and his lawyer ’s applications for a supervisory review . On DATE the applicant lodged her written arguments with the ORG .

On DATE the Presidium of ORG , relying on LAW , quashed the judgments of DATE and DATE and acquitted PERSON . The compensation claims were accordingly dismissed . The ORG held , inter alia , that the district and regional courts had not established what constituted the criminal conduct under the particular head of the criminal charge , whether it had in fact taken place and whether it had been committed by the former husband . The District and Regional courts , without proper assessment of evidence , presumed that the applicant ’s injuries had been caused by her former husband . Thus , PERSON . ’s guilt was not proven and the principle of presumption of innocence was violated .

The applicant and her representative attended the supervisory review hearing and submitted their arguments . On DATE the applicant was served with a copy of the judgment of DATE .

Section VI , LAW , of LAW ( in force at the material time ) allowed certain officials to challenge a judgment which had entered into force and have the case reviewed on points of law and procedure . The supervisory review procedure was to be distinguished from proceedings which review a case because of newly discovered facts .

Pursuant to Article CARDINAL of the ORG , a judgment entered into force and was subject to execution as of DATE when the appeal ( cassation ) instance pronounced its judgment .

Article CARDINAL of the ORG provided that the power to lodge an application for supervisory review could be exercised by ORG , the President and the Vice - President of ORG of GPE , in respect of any judgment other than those of the Presidium of ORG , and by the president of the regional courts in respect of any judgment of a regional or subordinate court . A party to criminal or civil proceedings could solicit the intervention of such officials for a review .

Article CARDINAL of the ORG laid down a limitation period of DATE during which an application for supervisory review of an acquittal judgment could be brought . This period also applied to an application for supervisory review of a conviction , if such application sought a harsher punishment to be imposed . The period ran from the date when the judgment entered into force . In all other cases , there was no time - limit prescribed for lodging such applications .

According to Articles CARDINAL , CARDINAL and CARDINAL of the ORG , the application for supervisory review was to be considered by the judicial board of the competent court which examined the case on the merits , not being bound by the scope and grounds of the application . The board could either dismiss the application and thus uphold the earlier judgment , or grant the application . In the latter case it had to decide whether to quash the judgment and terminate the criminal proceedings , to remit the case for a new investigation , or for a fresh court examination at any instance , to uphold a first - instance judgment reversed on appeal , or to modify and uphold any of the earlier judgments .

According to LAW ORG , the relevant prosecutor was to participate in the supervisory review hearing . If necessary , the convicted person and his counsel could be summoned to the hearing to make submissions . If summoned to the hearing , the convicted person , the victim and their counsel were to have the opportunity to familiarise themselves with the application for supervisory review and written submissions in reply . At the hearing , the case was to be presented by a judge rapporteur , following which the parties , if present , were to be entitled to make oral submissions .

Articles CARDINAL and CARDINAL of the ORG identify grounds for quashing or amending earlier judgments . In particular , such judgments were to be quashed or modified if a court performing the supervisory review had found that the judgments were unlawful or groundless ; or if the pre - trial and judicial investigation had been CARDINAL - sided and inadequate ; or if the lower - instance courts had come to conclusions which did not correspond to the facts of the case ; or if the courts had violated criminal procedural law or had incorrectly applied criminal law ; or if the sentence did not correspond to the gravity of the crime and the character of the convicted person .


CASE OF THE SUNDAY TIMES v. THE UNITED KINGDOM (No. 1)

Violation of Art. 10;No violation of Art. 14+10;Not necessary to examine Art. 18;Just satisfaction reserved

Historical

DATE Distillers Company ( Biochemicals ) Limited ( " Distillers " ) manufactured and marketed under licence in the GPE drugs containing an ingredient initially developed in GPE and known as thalidomide . The drugs were prescribed as sedatives for , in particular , expectant mothers . In DATE a number of women who had taken the drugs during pregnancy gave birth to children suffering from severe deformities ; in the course of time there were CARDINAL such births in all . Distillers withdrew all drugs containing thalidomide from the NORP market in DATE .

Writs against ORG were issued , DATE , by the parents of CARDINAL of the deformed children on their own and on their children ’s behalf . They contended that the cause of the deformities was the effect on the foetus of thalidomide administered to the mother during pregnancy , alleged that ORG had been negligent in the production , manufacture and marketing of the drugs and claimed damages . Distillers denied negligence and put in issue the legal basis of the claims . A number of actions were also brought in respect of persons alleged to have suffered peripheral neuritis as a result of use of the drugs .

Of the CARDINAL actions by parents , CARDINAL were settled in DATE following negotiations between the parties’ legal advisers . In CARDINAL of the cases , the children were still alive and the settlement therefore required court approval which was obtained . The basis of the settlement was that each plaintiff , provided he withdrew his allegation of negligence , should receive from Distillers a lump sum equal to MONEY of the amount he would have recovered had his action wholly succeeded . Further proceedings in ORG in DATE dealt with the assessment of damages in the cases settled on the above - mentioned basis and , in the event , Distillers paid out CARDINAL in respect of CARDINAL cases . CARDINAL cases were otherwise disposed of and the amount of damages in the remaining CARDINAL was still under negotiation in DATE .

The DATE settlement did not cover CARDINAL of the original CARDINAL actions , since the writs in those CARDINAL cases had not been issued within the DATE limitation period prescribed by LANGUAGE law . Leave to issue writs out of time was subsequently granted ex parte by the court both in those CARDINAL cases and in respect of a further CARDINAL claims by the parents or guardians of other deformed children . A further CARDINAL claims had also been notified to ORG in correspondence but formal proceedings were not started by agreement between the parties . Thus , by DATE , CARDINAL claims in all were pending against ORG . Apart from a statement of claim in CARDINAL case and a defence delivered in DATE , no further steps were taken in those actions where writs had been issued . Distillers had announced in DATE that they would provide a substantial sum for the benefit of the remaining CARDINAL claimants and both sides were anxious to arrive at a settlement out of court . The case in fact raised legal issues of considerable difficulty under LANGUAGE law . Had any of the actions come on for trial , they would have been heard by a professional judge sitting without a jury .

In DATE , negotiations began on a proposal by ORG to establish a charitable trust fund for all the deformed children other than those covered by the DATE settlement . The proposal was made subject to the condition that all the parents accepted but CARDINAL refused , CARDINAL , at least , because payments out of the fund would have been based on need . An application , on behalf of the parents who would have accepted , to replace those CARDINAL by ORG as next friend was refused by ORG in DATE . During subsequent negotiations , the original condition was replaced by a requirement that " a substantial majority " of the parents consented . By DATE , a settlement involving the setting up of a £ MONEY trust fund had been worked out and was expected to be submitted in DATE to the court for approval .

Reports concerning the deformed children had appeared regularly in ORG since DATE , and in DATE it had ventured some criticism of the settlement concluded in DATE . There had also been comment on the children ’s circumstances in other newspapers and on television . In particular , in DATE , ORG published an article which prompted complaints from parents that it might jeopardise the settlement negotiations in hand ; the Daily Mail was " warned off " by the Attorney - General in a formal letter threatening sanctions under the law of contempt of court , but contempt proceedings were not actually instituted . On DATE , ORG carried an article entitled " Our Thalidomide Children : A Cause for National Shame " : this examined the settlement proposals then under consideration , describing them as " grotesquely out of proportion to the injuries suffered " , criticised various aspects of LANGUAGE law on the recovery and assessment of damages in personal injury cases , complained of the delay that had elapsed since the births and appealed to Distillers to make a more generous offer . The article contained the following passage :

" ... the thalidomide children shame Distillers ... 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 MONEY , spread over DATE . This does not shine as a beacon against pre - tax profits DATE of MONEY and company assets worth MONEY . Without in any way surrendering on negligence , ORG could and should think again . "

A footnote to the article announced that " in a future article The DATE Times [ would ] trace how the tragedy occurred " . On DATE , ORG of ORG granted the Attorney - General ’s application for an injunction restraining publication of this future article on the ground that it would constitute contempt of court ( see paragraphs CARDINAL below for a summary of the draft article and particulars of the contempt proceedings ) .

Although the proposed article was accordingly not published , ORG throughout DATE contained a number of features on " the thalidomide children " and the laws of compensation for personal injuries . There was also a considerable response from the public , the press and television . Some radio and television programmes were cancelled after official warnings about contempt but proceedings were not actually taken except as regards a television programme , shown on DATE , concerning the plight of the children . The Attorney - General claimed that that programme was calculated to bring pressure on Distillers to pay more . On DATE , ORG decided ( Attorney - General v. ORG ) that there had been no contempt because it was not established that the television company deliberately intended to influence the pending proceedings and , in the circumstances , a single showing of the programme did not create " a serious risk " of interference with the course of justice . The court distinguished the case concerning the proposed DATE ORG article on the basis that , there , the editor had made it plain that he was deliberately attempting to persuade ORG to pay more .

In ORG , the Speaker had repeatedly refused to allow any debate or questions on the issues raised by the thalidomide tragedy . However , on CARDINAL DATE , the matter was extensively debated in the ORG which had before it a motion , inter alia , calling on Distillers to face up to their moral responsibilities and for immediate legislation to establish a trust fund for the deformed children . Shortly before the debate , ORG had increased the value of their proposed trust fund from £ CARDINAL,CARDINAL,CARDINAL to £ CARDINAL,CARDINAL,CARDINAL . Much of the debate was devoted to the question whether immediate legislation would or would not take pressure off ORG and/or the parents and to a discussion of social services for the children and the disabled in general and of official scrutinising systems for new drugs . Tributes were paid to the DATE ORG campaign and various criticisms were made of the law and lawyers . The question of NORP legal , as opposed to moral , responsibility was not discussed , although references were made to facts - described as " the danger flags flying " - of which little notice had been taken , and to the absence of a general practice of tests on the foetus when thalidomide was first marketed . Similar references appeared in the draft DATE ORG article . At the close of the debate , the ORG , " disturbed about the plight of thalidomide children , and the delay in reaching a settlement " , recognised the initiatives taken by the Government to improve services for the disabled and welcomed the Government ’s undertaking to investigate any special cases of need and to " consider , as soon as the cases are no longer sub judice , whether a trust fund needs to be established for thalidomide children " .

The Parliamentary debate was followed by a further wave of publications and there was a nationwide campaign in the press and among the general public directed to bringing pressure on Distillers to make a better offer . The campaign included a threat to boycott NORP other products and many of their shareholders publicly urged a speedy and satisfactory settlement . CARDINAL articles in the Daily Mail of DATE and DATE referred , in particular , to many of the same test and research results as the enjoined ORG article .

There were also , round about this time , a number of press articles denying NORP legal responsibility , but no further contempt proceedings were instituted . A public investigation of the causes of the tragedy was repeatedly demanded but never carried out ; in fact , it was finally refused by the competent Minister in DATE .

Following the public criticism , the proposed settlement did not proceed and , in DATE and DATE , ORG came forward with new proposals which involved a further increase in the value of the trust fund to £ MONEY . Negotiations continued . In the meantime , following an appeal by ORG , ORG injunction was discharged by ORG on DATE , only to be restored in modified form on DATE following the ORG of Lords’ decision of DATE allowing a further appeal by the Attorney - General ( see paragraphs CARDINAL below ) .

On DATE , a single judge of ORG approved in the great majority of the cases the terms of a settlement , after satisfying himself that they were in the true interests of the minors involved . Under the settlement :

( a ) each plaintiff , provided he withdrew his action , was to receive a lump sum equal to MONEY of the amount he would have received had the action been successful ; and

( b ) a charitable trust fund was to be set up for the deformed children , including those covered by the DATE settlement .

Distillers maintained their denial of negligence on the part of themselves or their advisers ; since not all the parents accepted the proposed settlement , this issue remained sub judice .

On application by the Attorney - General , the injunction against ORG was discharged on DATE ( see paragraph CARDINAL below ) . DATE , the contentious article was published . It differed in a number of respects from the original draft ; in particular , it omitted certain matters based on information which had been received in confidence by the GPE advisers during the thalidomide litigation . Disclosure of this information had been forbidden by a further injunction of DATE of which the applicants did not complain before the ORG .

By DATE , CARDINAL of the GPE actions against ORG remained outstanding : in CARDINAL , the pleadings were closed but nothing had been done since DATE ; in CARDINAL , there had been only delivery of a statement of claim ; in the fourth , only a writ had been issued . Moreover , there was still pending at that date litigation between ORG and their insurers which also involved the issue of negligence : the insurers had contested their liability to pay for the DATE settlement on the ground , inter alia , that ORG had not carried out adequate tests and research . This action had been set down for trial on DATE but was , in fact , settled on DATE .

Summary of the draft article

The unpublished article which was the subject of the injunction opened with a suggestion that the manner of marketing thalidomide in GPE left a lot to be desired . It stated that Distillers :

" - relied heavily on the NORP tests and had not completed full trials of its own before marketing the drug ;

- failed to uncover in its research into medical and scientific literature the fact that a drug related to thalidomide could cause monster births ;

- before marketing the drug did no animal tests to determine the drug ’s effect on the foetus ;

- accelerated the marketing of the drug for commercial reasons . Were not deflected by a warning from CARDINAL of its own staff that thalidomide was far more dangerous than had been supposed ;

- were not deflected by the discovery that thalidomide could damage the nervous system , in itself a hint that it might damage the foetus ;

- continued to advertise the drug as safe for pregnant women up to a DATE from when it was withdrawn . "

The body of the article described how , after their apparently disappointing initial ventures into pharmaceutics , ORG learned in DATE that the NORP firm of ORG had developed a sedative considered harmless and unique - thalidomide . The very large market existing at the time for sedatives was becoming overcrowded and ORG thought it necessary to act quickly . Their decision to market the drug was taken before they had seen technical information , other than the transcript of a NORP symposium , and before carrying out independent tests . Indeed , they seemed to believe that thalidomide would not need elaborate tests . Distillers put in hand a search of scientific literature but failed to discover the results of research in DATE by a Dr. PERSON showing that a chemical related to thalidomide could cause monster births ; opinions differed as to whether his work should have been found .

Sales of thalidomide began in GPE in DATE and ORG were committed under their licensing agreement to commence marketing in DATE . They put the programme for the drug ’s launch in hand even though clinical trials were behind . Results of the first NORP trials were published in DATE : it had been found that thalidomide suppressed the work of the thyroid gland and that its method of action was unknown ; the researcher warned that more tests were needed . Distillers did not rely on this advice , basing their decision on " flimsy " evidence , namely other trials in GPE and assurances concerning the results of research in GPE . The warning about anti - thyroid effects was particularly relevant since it was known that drugs affecting the thyroid could affect unborn children ; it was reasonable to argue that ORG should have delayed launching the drug pending further tests .

On DATE , continued the article , thalidomide went on sale in GPE , advertised as " completely safe " . At DATE , ORG pharmacologist discovered that thalidomide in liquid form was highly poisonous and that an overdose might be lethal , but this report was never published and the liquid product went on sale in DATE . In DATE , it was reported that patients who had taken thalidomide in the tablet form in which it had first been on sale showed symptoms of peripheral neuritis ; this news had the result of holding up an application to market thalidomide in GPE where it was , in fact , never sold . Further cases of peripheral neuritis were reported in DATE but ORG advertising continued to stress the drug ’s safety .

DATE , children were born in GPE with deformities but there was at the time nothing to connect them with thalidomide . However , DATE , a doctor in GPE discovered that the common factor in a number of monster births was that mothers had taken thalidomide during pregnancy . This was reported to ORG on DATE who withdrew the drug DATE following newspaper disclosures . Distillers ended the public sale of thalidomide immediately afterwards . Tests on animals , published in DATE , confirmed that thalidomide caused deformities , but sales to hospitals were not ended until DATE .

The draft article concluded as follows :

" So the burden of making certain that thalidomide was safe fell squarely on [ Distillers ] . How did the company measure up to this heavy responsibility ? It can be argued that :

[ Distillers ] should have found all the scientific literature about drugs related to thalidomide . It did not .

It should have read PERSON ’s work on the effects on the nervous system of drugs related to thalidomide , have suspected the possible action on unborn babies and therefore have done tests on animals for teratogenic effect . It did not .

It should have done further tests when it discovered that the drug had anti - thyroid activity and unsuspected toxicity . It did not .

It should have had proof before advertising the drug as safe for pregnant women that this was in fact so . It did not .

For [ Distillers ] it could be argued that it sincerely believed that thalidomide was free from any toxicity at the time it was first put on the market in GPE ; that peripheral neuritis did not emerge as a side effect until the drug had been on sale in GPE for DATE ; that testing for teratogenic effects was not general in DATE ; that if tests had been done on the usual laboratory animals nothing would have shown because it is only in GPE white rabbit that thalidomide produces the same effects as in human beings ; and , finally , that in the CARDINAL clinical report of thalidomide being given to pregnant women no serious results followed ( because thalidomide is dangerous only during DATE of pregnancy ) .

There appears to be no neat set of answers ... " .

Domestic law

NORP law relating to contempt of court is described by the report of ORG ( the " PERSON report " , see paragraph CARDINAL below ) as " a means whereby the courts may act to prevent or punish conduct which tends to obstruct , prejudice or abuse the administration of justice either in relation to a particular case or generally " and as existing to protect not the dignity of the judges but " the administration of justice and ‘ the fundamental supremacy of the law’ " . Contempt of court is , with certain exceptions , a criminal offence punishable by imprisonment or a fine of unlimited duration or amount or by an order to give security for good behaviour ; punishment may be imposed by summary process without trial by jury and the publication of facts or opinions constituting a criminal contempt may also be restrained by similar process . To some extent , contempt of court covers the same ground as various ordinary criminal offences against the administration of justice , such as perversion of the course of justice . Contempt of court is a creature of the common law and covers many forms of conduct . Lord PERSON remarked in his speech in ORG in the DATE Times Case :

" There is an abundance of empirical decisions upon particular instances of conduct which has been held to constitute contempt of court . There is a dearth of rational explanation or analysis of a general concept of contempt of court which is common to the cases where it has been found to exist . "

The PERSON report divides contempt of court into the following categories :

( a ) " contempt in the face of the court " , for example throwing missiles at the judge , insulting persons in court , demonstrating in court ;

( b ) " contempt out of court " , subdivided into :

( i ) reprisals against witnesses after the conclusion of proceedings ;

( ii ) " scandalising the court " , for example , abusing a judge qua judge or attacking his impartiality or integrity ;

( iii ) disobedience to court orders ;

( iv ) conduct , whether intentional or not , liable to interfere with the course of justice in particular proceedings .

The present case concerns the last - mentioned category which includes contempt in the form of publications , reports or comments on legal proceedings in progress . The PERSON report states that there is a lack of a clear definition of the kind of statement , criticism or comment that will be held to amount to contempt . It adds that , until ORG in the DATE Times Case " formulated a rather different test " , the tests of contempt for publications were all based on the concept of prejudice to , or improper interference with , the legal process and that the mischief which the law of contempt is and always has been designed to suppress is the risk of prejudice to the due administration of justice .

It seems that a publication may constitute contempt of court not only if it appears after the issue of a writ but also if it appears when proceedings are " imminent " .

The Attorney - General has a right , but not an obligation , to bring before the court any matter which he thinks may amount to contempt and which he considers should , in the public interest , be so brought . Save in certain cases , contempt proceedings may also be instituted by private individuals .

It should be noted , in this connection , that a ORG rule prohibits reference in debate to matters that are sub judice . Subject to certain exceptions , no reference at all , whether prejudicial or not , may be made to civil litigation once the case has been set down for trial or otherwise brought before the court ; before that time ( or after it in the exceptional cases ) such matters may be referred to unless the ORG considers there to be a real and substantial danger of prejudice to the trial of the case . It was under this rule that the ORG held its debate of CARDINAL DATE ( see paragraph CARDINAL above ) , a report of which was published .

The domestic contempt proceedings

Distillers made a formal complaint to the Attorney - General that the DATE ORG article of CARDINAL DATE constituted contempt of court in view of the litigation still outstanding and , on DATE , ORG , in the absence of the Attorney - General , wrote to the editor of ORG to ask him for his observations . The editor , in his reply , justified that article and also submitted the draft of the proposed future article for which he claimed complete factual accuracy . ORG enquired whether the draft had been seen by any of the parties to the litigation , as a consequence of which a copy of the draft was sent by ORG on DATE . On DATE , ORG had been advised that the Attorney - General had decided to take no action in respect of the matter already published in DATE and DATE ; ORG also took no action . On DATE , the Attorney - ORG informed ORG that , following representations by ORG , the Attorney - General had decided to apply to ORG in order to obtain a judicial decision on the legality of the publication of the proposed article . On DATE , he issued a writ against ORG in which he claimed an injunction " to restrain the defendants ... by themselves , their servants or agents or otherwise , from publishing or causing or authorising to be published or printed an article in draft dealing , inter alia , with the development , distribution and use of the drug thalidomide , a copy of which article had been supplied to the Attorney - General by the defendants " .

The Attorney - General ’s application was heard by CARDINAL judges of ORG from CARDINAL to CARDINAL DATE ; on DATE the court granted the injunction .

In its judgment the court remarked :

" the article does not purport to express any views as to the legal responsibility of Distillers ... but ... is in many respects critical of ORG and charges them with neglect in regard to their own failure to test the product , or their failure to react sufficiently sharply to warning signs obtained from the tests by others . No one reading the article could ... fail to gain the impression that the case against ORG on the footing of negligence was a substantial one . "

The editor of ORG had indicated that any libel proceedings following publication would be defended by a plea that the contents of the article were true and the court approached the article on the footing that it was factually accurate .

The reasoning in the court ’s judgment may be summarised as follows . The objection to unilateral comment , prior to conclusion of the court hearing , was that it might prevent the due and impartial administration of justice by affecting and prejudicing the mind of the tribunal itself , by affecting witnesses who were to be called or by prejudicing the free choice and conduct of a party to the litigation . It was the third form of prejudice that was relevant to the present case . If a party was subjected to pressure of a kind which raised a serious prospect that he would be denied justice because his freedom of action in the case would be affected , then a contempt of court had been established . The test of contempt was whether , in all the circumstances of the particular case , the words complained of created a serious risk that the course of justice might be interfered with , irrespective of the writer ’s intention or the truth of the writing .

It was not for the court , as the defendants had contended , to balance the competing interests of the protection of the administration of justice on the one hand and the right of the public to be informed on the other : comment raising a serious risk of interference with legal proceedings should be withheld until the proceedings were terminated . However , even if this were not so , there was in this case no public interest in immediate disclosure which could outweigh the public interest in preventing pressure on the parties to the litigation .

There was no distinction in the present case between persuasion directed to a legal obligation and persuasion directed to a moral obligation . The undoubted motive of ORG was to enlist public opinion to exert pressure on ORG and cause them to make a more generous settlement than might otherwise be the case . There was a deliberate attempt to influence the settlement of pending proceedings and , having regard to the power of public opinion , publication of the article would create a serious risk of interference with NORP freedom of action in the litigation and would be a clear contempt .

An appeal by ORG against ORG decision was heard by ORG from DATE to CARDINAL DATE . The court had before it an affidavit by the editor of ORG setting out developments in the intervening period both in the case itself and in public discussion thereof . With the leave of the court , counsel for ORG made submissions on the contents of the proposed article , pointing to errors he said it contained . On DATE , ORG discharged the injunction . Summaries of the judgments read by the CARDINAL members of the court appear below .

Lord PERSON said that the proposed article :

" ... contains a detailed analysis of the evidence against ORG . It marshals forcibly the arguments for saying that ORG did not measure up to their responsibility . Though , to be fair , it does summarise the arguments which could be made for ORG . "

After pointing out that the court had no affidavit from ORG as to the effect of the proposed article on them and little knowledge of the state of the litigation and settlement negotiations , Lord PERSON stated the law as follows :

" ... when litigation is pending and actively in suit ... 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 ... 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 ... [ Further ] none shall ... bring unfair pressure to bear on one of the parties ... 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 . "

" Trial by newspaper " , continued Lord PERSON , must not be allowed . However , the public interest in a matter of national concern had to be balanced against the interest of the parties in a fair trial or settlement ; in the present case the public interest in discussion outweighed the potential prejudice to a party . The law did not prevent comment when litigation was dormant and not being actively pursued . Moreover , since the law did not prevent comment on litigation which had ended or had not started , there was nothing to prevent comment on the CARDINAL cases settled in DATE or the CARDINAL cases in which writs had not been issued . Even in DATE , the proposed article would not have amounted to contempt : it was fair comment on a matter of public interest ; it did not prejudice pending litigation because that litigation had been dormant for DATE and still was ; and the pressure the article was intended to bring to bear was legitimate . In addition , it would be discrimination of the worst kind to continue to enjoin ORG alone when ORG and other newspaper had discussed the matter since DATE .

Lord Justice PERSON pointed out that anyone could comment freely on the cases which had been settled or in which no writ had been issued . Unfair pressure to settle a case might constitute contempt of court , but here there was no affidavit from ORG and no evidence that there was a serious risk of the proposed article ’s compelling ORG to settle for more or that the pressure was unfair . The position would have been different if there had been a real intention to bring the remaining cases to court since , in that event , an article designed to prejudice the public against a party or to put pressure on him so as to force a settlement could not have been countenanced . Moreover , since DATE , ORG had debated the matter and other newspapers , especially the Daily Mail , had commented ; it would therefore be unreal to continue injunction .

After indicating that he agreed with Lord PERSON ’s judgment , Lord Justice PERSON pointed out that no one expected a trial ; the writs were a move towards obtaining a settlement and the mere issue of a writ could not stifle all comment . Since there was no evidence of litigation actively in suit , it was unrealistic to treat the proposed article as constituting a real or substantial prejudice to the course of justice . Moreover , the public interest in freedom of speech on a matter of great public moment had to be considered . Finally , even if ORG had been right , the state of public opinion following ORG debate was such that the injunction should now be discharged .

Following ORG decision , ORG refrained from publishing the proposed article so as to enable the Attorney - General to appeal . ORG refused him leave to appeal but this was granted by ORG on DATE . The hearing before ORG was held in DATE . On DATE , the ORG gave judgment unanimously allowing the appeal and subsequently directed ORG to grant an injunction in the terms set out in paragraph CARDINAL below . Summaries of the speeches read by ORG appear below .

Lord PERSON said that the ORG must try to remove the uncertainty which was the main objection to the present law . The law of contempt had to be founded entirely on public policy : it was not there to protect the rights of parties to a litigation but to prevent interference with the administration of justice and should be limited to what was reasonably necessary for the purpose . Freedom of speech should not be limited more than was necessary but it could not be allowed where there would be real prejudice to the administration of justice .

Lord PERSON turned first to the question of comment on pending proceedings which was likely to bring pressure to bear upon one of the litigants . Whilst comment likely to affect the minds of witnesses and of the tribunal had to be stopped for otherwise the trial might well be unfair , the fact that a party refrained from seeking to enforce his full legal rights in no way prejudiced a fair trial , whether the decision was or was not influenced by CARDINAL party . Accordingly , where the only matter to be considered was pressure put on a litigant , fair and temperate criticism or urging him to forgo his legal rights was legitimate and admissible ; thus , the article of CARDINAL DATE did not constitute contempt . Publication in DATE of the proposed further article , which consisted " in the main of detailed argument and evidence intended to show that ORG did not exercise due care " , would not have added much to the pressure already on ORG .

On this basis , Lord PERSON could agree with the decision of ORG , though for different reasons . However , he then pointed out :

" The question whether ORG were negligent has been frequently referred to but , so far as I am aware , there has been no attempt to assess the evidence . If this material were released now , it appears to me to be almost inevitable that detailed answers would be published and there would be expressed various public prejudgments of this issue . That I would regard as very much against the public interest . "

After noting that there was a strong and general feeling that trial by newspaper should be prevented , Lord PERSON continued :

" I think that anything in the nature of prejudgment of a case or of specific issues in it is objectionable , not only because of its possible effect on that particular case but also because of its side effects which may be far - reaching . Responsible ‘ mass ORG will do their best to be fair , but there will also be ill - informed , slapdash or prejudiced attempts to influence the public . If people are led to think that it is easy to find the truth , disrespect for the processes of the law could follow , and , if mass media are allowed to judge , unpopular people and unpopular causes will fare very badly . Most cases of prejudging of issues fall within the existing authorities on contempt . I do not think that the freedom of the press would suffer , and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to prejudge issues in pending cases . "

ORG had wrongly described the actions as " dormant " , since settlement negotiations were in hand and improper pressure on a litigant to settle could constitute contempt . As for ORG balancing of competing interest , Lord PERSON said :

" ... contempt of court has nothing to do with the private interest of litigants . I have already indicated the way in which I think that a balance must be struck between the public interest in freedom of speech and the public interest in protecting the administration of justice from interference . I do not see why there should be any difference in principle between a case which is thought to have news value and CARDINAL which is not . Protection of the administration of justice is equally important whether or not the case involves important general issues . "

Lord PERSON concluded that publication of the article should be postponed for the time being in the light of the circumstances then prevailing ; however , if things dragged on indefinitely , there would have to be a reassessment of the public interest in a unique situation .

For Lord PERSON of PERSON , the law of contempt was designed to protect the authority of the courts and to prevent unjustifiable interference with recourse to them . The public interest in free speech had to be put in the balance and no limitations should be imposed beyond those which were absolutely necessary , but

" this does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress that was a matter of public sympathy and concern . There can be no such thing as a justifiable contempt of court . "

A court would only find a contempt if the risk of prejudice were serious , real or substantial . Not only had there to be no influencing of the court or of witnesses , but it was unseemly that there should be public advocacy in favour of CARDINAL side in a cause awaiting determination by the courts . Lord PERSON stressed that there should be no " trial by newspaper " , remarking that :

" ... the courts ... owe it to the parties to protect them either from the prejudices of prejudgment or from the necessity of having themselves to participate in the flurries of pre - trial publicity . "

The actions against ORG , he continued , were not " dormant " just because the parties preferred a settlement to a trial . Whilst there would have been no objection in DATE to a comment on the amounts paid under the DATE settlement or on the general principles of law involved or to a temperate moral appeal to ORG , the proposed article went further . Its avowed object was to bring public pressure on ORG to pay more . Negligence was one of the issues arising , and the draft article , though asserting no conclusions , showed that there was a considerable case against ORG . The time had not yet arrived to discharge the injunction .

Lord PERSON said that contempt of court was punishable because it undermined the confidence of the parties and of the public in the due administration of justice . The due administration of justice required that all citizens should have unhindered access to the courts ; that they should be able to rely on an unbiased decision based only on facts proved in accordance with the rules of evidence ; that , once a case was submitted to a court , they should be able to rely upon there being no usurpation by any other person , for example in the form of " trial by newspaper " , of the function of the court . Conduct calculated to prejudice any of these requirements or to undermine public confidence that they would be observed was contempt of court . Lord PERSON stated that :

" ... contempt of court in relation to a civil action is not restricted to conduct ... calculated ... to prejudice the fair trial of that action by influencing ... the tribunal ... or witnesses ; it extends also to conduct that is calculated to inhibit suitors generally from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced in courts of law , by holding up any suitor to public obloquy for doing so or by exposing him to public and prejudicial discussion of the merits or the facts of his case before they have been determined by the court or the action has been otherwise disposed of in due course of law . "

The proposed DATE ORG article , Lord PERSON considered , fell into this latter category since it discussed prejudicially the facts and merits of NORP defence to the charge of negligence before the actions had been determined by a court or settled . The actions could not be ignored as " dormant " , as the same protection had to apply to settlement negotiations as to the actual trial . Subsequent events did not justify dissolution of the injunction although , " as [ was ] conceded " , the wording called for some amendment . The seriousness of the risk of interference with the due administration of justice was relevant only to the question whether the court should inflict punishment : once there was a real risk , there was at least technical contempt .

The passage quoted at paragraph CARDINAL above from the article of DATE was also , thought Lord PERSON , a contempt though for a different reason , namely that it held Distillers up to public obloquy for relying on a defence available to them under the law ; however , those parts of the DATE article that dealt with general principles of law were unobjectionable since , if discussion of such matters of general interest had the indirect effect of bringing pressure on a litigant , it had to be borne because of the greater public interest in upholding freedom of discussion on matters of public concern .

Lord PERSON of ORG agreed with Lord PERSON ’s statement of the law and with his views concerning the above - mentioned passage in the DATE article . He saw the proposed further article as a detailed discussion of CARDINAL of the crucial issues in the actions and as designed to bring moral pressure on Distillers to settle on better terms . The law of contempt was the means by which the law vindicated the public interest in the due administration of justice . Most civil actions were settled and interference with settlement negotiations was no less contempt than interference with a procedural situation in the strictly forensic sense . The due course of justice included negotiation towards a settlement on the basis of the ordained law and ORG had been wrong in saying that the article would not be contempt because the litigation was dormant . Even private pressure on a litigant was generally impermissible and could be justified only within narrow limits . The law had to hold in balance CARDINAL public interests - in freedom of discussion and in the due administration of justice - but would be too uncertain if the balance were to be struck anew in each case . The law had to lay down some general guidelines ; as regards particular litigation , the paramount public interest pendente lite was that the legal proceedings should progress without interference . An exception was that public discussion of a matter of general interest which had already started before litigation began did not have to stop if it was not intended to prejudice the litigation .

Lord Cross of ORG stated that " contempt of court " meant an interference with the administration of justice . The rules of contempt should not inhibit freedom of speech more than was reasonably necessary . The proposed article examined the question whether ORG had been negligent and any " prejudging " of issues of fact or law in pending civil or criminal proceedings was in principle such an interference . He continued :

" A publication prejudging an issue in pending litigation which is itself innocuous enough may provoke replies which are far from innocuous but which , as they are replies , it would seem unfair to restrain ... An absolute rule - though it may seem to be unreasonable if CARDINAL looks only to the particular case - is necessary in order to prevent a gradual slide towards trial by newspaper or television . "

This rule , added Lord Cross , applied to the outcome of settlement negotiations as much as to the result of the actual trial .

ORG had argued that there should be an exception to this rule when matters of great public concern were involved ; however , the ORG was only concerned with discussion of the issue whether ORG had been negligent and discussion of the wider issues , such as the scope of producers’ liability and the assessment of damages , was not inhibited . ORG had also been placed by the publisher on the lapse of time since the births and the absence of any public inquiry ; however , neither side was to blame for the delay , ORG had wrongly described the actions as " dormant " since settlement negotiations were being actively pursued and the absence of a public inquiry did not justify allowing the press to conduct an inquiry while proceedings were in progress . The position had not altered since ORG hearing : ORG debate had concentrated on the moral issues and , although ORG had come forward with an offer which made an overall settlement likely - so that publication of the article could not now harm them - , it was not certain that no claims would come to court . Accordingly , the injunction should be restored but with liberty to apply for its discharge whenever ORG considered that they could persuade a court that its continuation was not warranted in the light of the facts then existing .

The article of CARDINAL DATE was not a contempt : prejudging an issue was contempt of court but a fairly and accurately expressed comment that might bring even great pressure on a litigant was not .

On DATE , ORG ordered that the cause be remitted to ORG with a direction to grant the following injunction :

" That ... ORG , by themselves , their servants , agents or otherwise , be restrained from publishing , or causing or authorising or procuring to be published or printed , any article or matter which prejudges the issues of negligence , breach of contract or breach of duty , or deals with the evidence relating to any of the said issues arising in any actions pending or imminent against ORG ... in respect of the development , distribution or use of the drug ‘ LAW . "

The defendants were granted liberty to apply to ORG for discharge of the injunction .

ORG implemented the above direction on DATE .

On DATE , the ORG heard an application by the Attorney - General for the discharge of the injunction . It was said on behalf of the Attorney - General that the need for the injunction no longer arose : most of the claims against ORG had been settled and there were CARDINAL extant actions which could by then have been brought before the courts if they had been pursued diligently . As there was a conflicting public interest in ORG being allowed to publish " at the earliest possible date " , the Attorney - General submitted the matter to the court as one where the public interest no longer required the restraint . The court , considering that the possibility of pressure on ORG had completely evaporated , granted the application .

Proposals for reform of the law of contempt of court

CARDINAL particular aspect of the law had been considered by ORG on the Law of Contempt as it affects ORG , which reported in DATE . On DATE , the Lord Chancellor and the Lord Advocate appointed a committee under the chairmanship of Lord Justice PERSON to consider whether any changes were required in the law of contempt as a whole . The PERSON report was presented to ORG in DATE , having been delayed by ORG contempt litigation . The report discussed the various judgments in that case and described it as well illustrating the uncertainty of the present state of the law regarding publications dealing with legal proceedings . Whilst it might be that the right to issue such publications had on occasion to be overridden by the public interest in the administration of justice , the committee was of the opinion that the balance had moved too far against the freedom of the press . It therefore made various proposals for reform , both to redress the balance and in order to achieve greater certainty in the law . In particular , it doubted whether a " prejudgment " test such as that proposed in ORG was the right CARDINAL , considering that it went both too far and not far enough . The ORG preferred the following test , to be applied in the light of the circumstances existing at the time of publication : " whether the publication complained of creates a risk that the course of justice will be seriously impeded or prejudiced . " CARDINAL member of the committee remarked that , despite the suppression of the DATE ORG article , the campaign of protest and pressure over the talidomide tragedy made a mockery of the law of contempt .

The committee concluded , in particular , that the law of contempt was required as a means of maintaining the rights of the citizen to a fair and unimpeded system of justice and protecting the orderly administration of the law ; however , the operation of that law should be confined to circumstances where the offending act was not within the definition of any other criminal offence and where the achievement of that law ’s objectives required a summary procedure . The law as it stood contained uncertainties impeding and restricting reasonable freedom of speech and should be amended and clarified so as to allow as much freedom of speech as was consistent with the achievement of the above - mentioned objectives .

The committee recommended , inter alia , that a publication should be subject to the law of contempt if it created a risk of serious prejudice ( whether intentionally or not ) but that this strict liability should only apply :

( a ) if the publication created a risk that the course of justice would be seriously impeded or prejudiced ;

( b ) when , in the case of civil proceedings in GPE and GPE , the case had been set down for trial ;

( c ) subject to the availability of a defence that the publication formed part of a discussion of matters of general public interest and only incidentally or unintentionally created a risk of serious prejudice to particular proceedings .

It was also recommended that bringing influence or pressure to bear upon a party to proceedings should not be held to be a contempt unless it amounted to intimidation or unlawful threats to his person , property or reputation .

The recommendations contained in the PERSON report have not yet been implemented and the Government have made no proposals for legislation . However , in DATE , they issued a ORG , intended to provide a basis for ORG and public discussion , and invited comments which would be taken into account in a decision on policy . The ORG , which draws no conclusions , rehearses the recommendations of ORG and sets out arguments for and against certain of them , for example , those relating to the provision of a defence of " discussion of matters of general public interest " and to bringing influence or pressure to bear upon a party . The document does not call in question the suggestion that the " prejudgment " test referred to in ORG should be reconsidered .


The applicant is a limited liability company with its seat in LOC .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the liquidation of ORG ( “ the Factory ” ) was ordered by the Borsod - Abaúj - Zemplén County Regional Court . However , during the liquidation procedure , the ORG remained partly active , in order to minimise losses .

DATE and DATE , the predecessor of the applicant was a supplier of the ORG . As the ORG was unable to pay for the services already rendered – the outstanding fees amounted to MONEY ( MONEY ) – the applicant became a creditor in the liquidation proceedings .

On DATE the ORG 's liquidator prepared the closing balance sheet . The liquidator was of the view that the satisfaction of all the creditors in cash was impossible . Instead of payment in cash , it therefore offered shares in the ORG , but the applicant declined the proposal .

On DATE the applicant objected ( kifogás ) to the closing balance sheet and insisted on payment in cash .

On DATE the FAC Regional Court accepted the closing balance sheet . On appeal on DATE , ORG , acting as a second - instance court , quashed this decision due to procedural shortcomings . It found , inter alia , that ORG had not dealt with the applicant 's objection . ORG held that the liquidator was under an obligation to attempt to sell the shares of the ORG first and then satisfy the creditors from the sums received . ORG decision arrived at ORG on DATE .

On DATE ORG ordered the liquidator to prepare a new closing balance sheet .

On DATE the liquidator informed ORG that the sale of the shares was only possible well below their nominal value . The liquidator also informed ORG about the ongoing negotiations with possible investors and requested an extension of the time - limit for the preparation of the closing balance sheet . ORG registered the liquidator 's request .

On DATE the liquidator announced that its attempt to sell the shares had been unsuccessful and requested ORG to accept an amended closing balance sheet .

On DATE the liquidator informed ORG about an update to the closing balance sheet .

On DATE the applicant initiated negotiations with the liquidator . At a meeting held on DATE , the liquidator acknowledged that it had satisfied some of the creditors more favourably than the applicant , but had only done so to keep the ORG at least partly active .

On DATE the applicant lodged a complaint with ORG about the lack of a final decision in the case .

On DATE the applicant raised an objection before ORG , asking the court to terminate the liquidation proceedings .

On DATE ORG dismissed the applicant 's complaint without examining its merits .

Subsequently , on DATE the applicant lodged another complaint with ORG and requested the appointment of an expert auditor in order to establish whether the liquidator had breached its duties .

On DATE ORG dismissed the applicant 's second complaint . The applicant appealed . On DATE ORG upheld the first - instance decision .

Meanwhile , on DATE ORG ordered the liquidator , under pain of a fine and deletion from the register of liquidators , to produce the closing balance sheet within DATE or inform the court about any obstacles .

On DATE the liquidator informed ORG that the liquidation procedure was at an advanced stage , but requested the court to forbear from demanding the closing balance sheet “ because of difficulties in obtaining , handling and classifying certain documents ” . The liquidator added that the unsuccessful attempt to reach a settlement with the applicant had also delayed the proceedings .

On DATE ORG again requested information from the liquidator about the obstacles to finishing the procedure .

On DATE the liquidator informed ORG that it was still facing the same difficulties and , therefore , was not able to produce the closing balance sheet .

On DATE the liquidator prepared an additional closing balance sheet . The Borsod - Abaúj - Zemplén County Tax Authority audited that document , which was then lodged with ORG on DATE .

The liquidation procedure is apparently still pending .

On DATE the applicant brought an action for compensation against the liquidator before the Borsod - Abaúj - Zemplén County Regional Court .

On DATE ORG stayed the proceedings . On appeal , on DATE ORG , acting as a second - instance court , reversed the first - instance decision and ordered the continuation of the proceedings .

In the resumed proceedings , on DATE ORG found that it had no jurisdiction to deal with the case and transferred it to the competent ORG . ORG , acting as a second - instance court , upheld this decision on DATE .

On DATE ORG dismissed the applicant 's case , finding that the procedure followed by the liquidator had complied with the relevant domestic law . Moreover , it pointed out that the applicant had failed , despite warnings , to request the appointment of an auditor , whose opinion would have been the only acceptable proof for the establishment of the defendant 's liability .

On appeal , on DATE the Borsod - Abaúj - Zemplén County Regional Court upheld the first - instance decision . The applicant lodged a petition for review with ORG .

On DATE ORG dismissed its petition , without an examination on the merits , as inadmissible , since it was incompatible ratione materiae with the relevant provisions of LAW .

In DATE the applicant brought an official liability action against the Borsod - Abaúj - Zemplén County Regional Court before ORG .

As ORG had no jurisdiction to hear the case , on DATE ORG had appointed PERSON to proceed .

On DATE ORG dismissed the applicant 's case . It pointed out that the domestic courts dealing with the matter had kept regular contact with the liquidator and repeatedly ordered it to produce the closing balance sheet . It also noted that the relevant domestic law did not contain a specific deadline to finish a liquidation procedure . ORG acknowledged that there had been some delays imputable to the courts dealing with the case , but was of the view that these delays had not caused any damage to the applicant , given that the possibility of recovering the money owed by the debtor had in any event been very low .

On appeal , on DATE ORG upheld the first - instance decision .


The applicant was born in DATE and lives in the town of GPE , GPE region .

On DATE ORG , following the request of PERSON , instituted criminal proceedings against the applicant on a charge of minor bodily injuries .

On DATE the applicant brought similar counter - charges against PERSON and PERSON

On DATE ORG acquitted the applicant , PERSON and PERSON

On DATE ORG ( herinafter “ the Regional Court ” ) , upon PERSON cassation appeal , quashed this decision in part concerning the applicant 's acquittal and remitted the case for a fresh consideration . ORG

On DATE ORG found the applicant guilty and sentenced her to DATE imprisonment and UAH CARDINAL fine ( suspended as time - barred ) .

On DATE ORG quashed this decision and remitted the case for a fresh consideration on the ground that the instance court erred in calculation of the statutory time - limit for the sanction .

On DATE ORG found the applicant guilty and sentenced DATE imprisonment and UAH CARDINAL fine ( suspended as time - barred ) .

On DATE ORG ( hereinafter “ the Court of Appeal ” ) upheld this decision .

On DATE ORG quashed all previous decisions on the ground of serious procedural violations by the first instance court and remitted the case for a fresh consideration .

On DATE ORG found the applicant guilty and sentenced her to TIME of public work ( suspended under LAW ) . It also ordered the applicant to pay PERSON in compensation for pecuniary and non - pecuniary damage .

On DATE and DATE ORG and ORG , respectively , upheld this decision .