FLAWED REASONING & COMMERCE

Up until the Second World War Distillers was purely a whisky business. During the conflict the expertise of the company's staff was adapted to the manufacturing of pharmaceuticals. Following the return of peace, the enterprise opted to continue to be involved in the sector.

Grunenthal of Germany developed Thalidomide as a sedative and anti-nausea treatment. In 1957 the company assigned the British rights to the drug to Distillers. In 1961 the medication started to be prescribed to pregnant women who were suffering from morning sickness. It caused a variety of physical deformities in some of the children who were born to women who had taken it.

Enoch Powell was an able linguist who had been appointed as a full professor of Greek while he had been in his mid-twenties. He had become a Conservative politician. He proved to be capable of taking brave, lone stances on single issues; in 1959 he spoke out against the way in which a number imprisoned Kenyan insurgents had been killed by their guards during the Mau Mau Uprising. He was cleverer than most of his party colleagues, however, he over-estimated the rigour of his own intellect. As a result of this conceit, during his career, he adopted a series of morally-flawed stances. One of these was upon the issue of Thalidomide.

The Health Secretaryship was conferred upon Powell in 1960. The following year Widukind Lenz, a German paediatrician, proved that there was a clear causal relationship between Thalidomide and the children's defects. Concurrently, William McBride (1927-2018), an obstetrician who worked at the Crown Street Hospital in Sydney, Australia, concluded that thalidomide was causing babies to be born with shortened limbs. The same year the medicine was withdrawn from use.

In 1962 Harold Evans was the editor of the Darlington-based Northern Echo newspaper. He took a decision to publish photographs of thalidomide babies because he believed that the paper s readership would regard as a human-interest story. Responses that were expressed to him were predominantly negative about the imagery. In retrospect, he was to fault himself for not having wondered why the children had been born so.

Powell had passionately embraced the teachings of the economist Friedrich Hayek. Therefore, he believed that public regulation must not be allowed to have an adverse bearing upon private industry. Ergo, as the initial stage of the Thalidomide scandal began to occur, he accepted Distillers assurances about the rigour of the research that had been involved in the drug s development. As a result, when the matter went before the courts, the company did not have to concern itself with the possibility that the Department of Health would be hostile towards it.

The victims case had been poorly constructed. The presiding judge, Mr Justice Hinchcliffe, did not feel the need to question the quality of the scientific argument that Distillers presented before him. The company agreed to accept a degree of liability on condition that the suit could only be discussed by the participating lawyers in strict confidentiality. The victims representatives made the error of accepting this stipulation. The enterprise then aggressively worked to reduce the size of its prospective obligation. The actuary John Prevett was appointed to assess what level of payment the victims should receive. Distillers targeted its attack on him and his work. This effort largely succeeded. At the time, the media was effectively indifferent as to how this miserliness would affect the victims lives in the decades to come. The operation of contempt of court rulings meant that the scientific aspects of the matter could not be discussed publicly. The issue seemed to have been resolved permanently.

In 1972 Prevett published an article in the Modern Law Review about how there was not a prescribed method by which judges could assess personal injury damages. The critique dissected Hinchliffe's performance, notably his acceptance of the assertion that inflation did not need to be taken into account because the government was committed to controlling it. Bruce Jones, a journalist on The Sunday Times, read the piece. He brought it to the attention of Harold Evans, who had been appointed the newspaper's editor in 1967. The issue of Distillers negligence was still sub judice. The publication realised that it could circumvent this fact by presenting a discussion that addressed the compensation issue. The paper then dedicated resources to campaigning on the Thalidomide victims behalf. A case was developed on the basis of real science.

The public were outraged by what they learnt of the matter. As a result, Distillers increased the size of the compensation fund to 3.5m. James Stocker was appointed to preside over the matter. He proved to be open-minded. Distillers could not face the prospect of being publicly humiliated in the courts. The negotiations between the two sides were conducted in secret. However, Judge Stocker did not feel any need to bring them to a close. This had the effect of increasing the amount of pressure that the company felt itself to be subject to. In the end, it agreed to provide 21m.

Prevett held personal views that did not incline him to hold the honours system in any regard. However, he accepted an O.B.E. in the 1974 New Years honours list. He did so because he appreciated that in part the bestowal was an official acknowledgement of the work of others in the matter. A quarter of a century later his own professional body, the Institute of Actuaries, finally bestowed its Finlaison Medal upon him.

In 1979 the European Court of Human Rights ruled that, in l affaire Sunday Times the British government was in breach of Article 10 of the European Convention on Human Rights. Three years later Parliament changed the law of contempt allowing newspapers to report on ongoing civil law cases.

Sir Peter Rawlinson, the Attorney-General, tried to block The Sunday Times s wish to publish a story about thalidomide on the grounds that a related case was still ongoing. (Sir) Brian Neill (1923-2017) appeared for the paper. He won. The case informed the Contempt of Court Act of 1981.

Location: 200 Gray's Inn Road, WC1X 8XZ. The Sunday Times's offices. (red, turquoise)

The Institute & Faculty of Actuaries, Staple Inn Hall, High Holborn, WC1V 7QJ (orange, brown)

20-21 St James's Square, SW1Y 4JY. Distillers London office. (orange, red)

The Ministry of Health, Fortress House, 23 Savile Row, W1S 2ET (red, brown)

David Backhouse 2024