A battle won late
Phillip Knightley was part of the celebrated Sunday Times team which exposed the thalidomide scandal. His memoirs give a new slant to an old story
Monday 25 August 1997
Thalidomide had been discovered by accident in 1954 by a small German company called Chemie Grunenthal. Grunenthal had sold the drug all over the world, aggressively promoting it as an anti-morning-sickness pill for pregnant women and emphasising its absolute safety - it would harm neither the mother nor the child in the womb.
The latter guarantee turned out to be tragically wrong. The drug was eventually withdrawn in 1961. But it was too late to prevent some 8,000 babies around the world being born with thalidomide deformities.
In Britain, the drug was marketed by the giant liquor company Distillers. Though there had been a terrible tragedy, governments declared that since the testing and marketing of the drug had met all the legal requirements of the time, what had happened was not the companies' responsibility.
Civil legal actions were instituted by the parents of the damaged children and vigorously contested by Chemie Grunenthal and Distillers. But far from opening up the whole matter to public scrutiny, these legal actions - except in the United States - closed everything down. No newspaper felt it could examine the thalidomide tragedy without prejudging the outcome of any eventual trial. So, in a terrible failure of journalism, newspapers carried stories on the lines of "Look how well these plucky children are getting on", while the truth was that the thalidomide children and their desperate parents were suffering agonies in a silence imposed upon them by the system.
But what was going on behind the scenes? The lawyers acting for the British families who had sued Distillers, believing they had a weak case, reached a settlement with the company in 1968/69 - the company would pay 40 per cent of what it would have paid if the children had been able to win a negligence case in court. In a test case the judge rejected evidence from John Prevett, a London actuary. This so outraged Prevett that he wrote two articles in the Modern Law Review attacking the court's decision and pointing out that even the full 100 per cent for the legless and armless boy in the test case would have run out when the boy was 27. But Fleet Street treated the awards like a pools win. True, The Sunday Times ran a leader page article under the headline: What Price a Pound of Flesh? But as the editor, Harold Evans, later admitted, "It was inadequate in the light of the Prevett memorandum. The thalidomide story concerns some shortcomings in journalism as well as a legal debacle."
When The Sunday Times campaign on behalf of the thalidomide children eventually got under way in 1972 it had two main themes: first, that the level of damages settled in 1968/9 was immorally low; and second, that the claim by Distillers that they had followed the best practices of the time because no one then tested drugs on pregnant animals was simply untrue - other drug companies did. But we could have discovered all this four years earlier in 1968. Prevett's articles in Modern Law Review were basically what he had said in the witness box and the reason he had written them was that no journalist would listen to him.
All the scientific material to rebut Distillers' defence was available to anyone who had the inclination and time to find it. How could the thalidomide children's case have gone steadily down the drain during those years without our noticing it? When The Sunday Times team looked back after the campaign was over, the team leader, Bruce Page, warned that we had no right to feel triumphant. He asked, "What excuses can we offer for having totally missed the whole bloody thing till it was practically too late?" Then, half in jest, he said any book we wrote on the campaign should be called, `How The Sunday Times Gradually Recovered From Its Own Mistakes And Did Something About The Thalidomide Scandal - Just In Time'.
I suppose that at the back of all our minds also was the inconvenient fact that we had come to the thalidomide scandal via what critics of the press call "chequebook journalism": the buying of information.
One cheque was to Henning Sjostrom, a leading Stockholm lawyer who had approached the paper in 1967 with an offer we could not refuse. He had represented the 105 Swedish children against thalidomide's Swedish distributor and had gained access to the documents that the German authorities had seized from Chemie Grunenthal when mounting the case. No German newspaper could publish them because of contempt of court, but a British paper could. Sjostrom wanted to be paid for the documents - his agent proposed pounds 2,500.
The other went to Dr Montagu Phillips, a consulting pharmacologist and chemical engineer who had been engaged by the solicitors representing the English families to act as a professional adviser. As part of the legal process of "discovery" the solicitors had been able to obtain all Distillers' files on thalidomide and had passed them to Phillips. Outraged by what he read, Phillips had waited for his moment in court but the years passed and it looked as if the case would never be heard. Harold Evans hesitated, but after weighing the inevitable accusations of "chequebook journalism" against the public interest in telling the story, he eventually offered Phillips pounds 8,000.
A team worked on translating the German papers and going through the 10,000 documents from Phillips. I worked on a draft article on how the drug was marketed in Britain, but only intermittently because continuing legal restraints offered little chance of early publication. It was not until April 1971 that I could report to the editor that I had a 12,000 word draft ready and had identified a number of people to interview.
The article sat in the office until a West End art dealer, David Mason, decided to go public. The father of a thalidomide daughter, Louise, he was angered by the paltry compensation and Distillers' condition that if even one parent objected the offer would be withdrawn. The Daily Mail ran three articles: "My fight for justice, by the father of heartbreak girl Louise". Then abruptly the articles stopped. Distillers' lawyers had complained to the Attorney-General that they were in contempt of court and he agreed. The rest of the media backed off, too.
I brought Mason to The Sunday Times to meet the editor. Then, just briefly, the project lost momentum. We were still going to do the story, but it was not at the top of the news list. Mason took this to be procrastination or being frightened off. By now wise in the ways of newspapers, and with an art dealer's skill in reading people, he rang me to say that the News of the World was looking at the story: "Apparently Rupert Murdoch [who did not then own The Sunday Times] "is very interested in it." A few days later he rang again: "The News of the World is going to run the series. Rupert doesn't give a damn about the Attorney-General." I knew Rupert well enough to decide that Mason's story was believable.
I went to see Harold Evans who was determined not to lose the story. "I'm tempted to publish anyway he said, "I'll go to jail. That's what I'll do. I'll go to jail. Bloody hell, it'd be worth it."
The paper's legal adviser had been struck by a remark made by Lady Hoare, who ran a charitable trust for thalidomide children. She said the parents resented the lack of "moral justice from the wealthy Distillers". Suppose the paper campaigned for a better settlement on purely moral grounds. We would not discuss the issues in the case, no attempt to apportion blame. If the Attorney-General moved against us, we would have a sustainable defence.
When the paper published the opening shots in its campaign, the headline was `Our thalidomide children: a cause for national shame". Evans wrote the "our" to try to make people feel personally responsible. At the end of the article was a tactical smart-bomb. It read "In future articles The Sunday Times will trace how the tragedy occurred." This put Distillers on notice that we had learnt enough to reconstruct the history of thalidomide and were going to publish it.
At the urging of Distillers the Attorney-General applied for an injunction stopping The Sunday Times from publishing any such article. He got it, we appealed, he appealed, we appealed again. It went all the way to the House of Lords, where we lost.
During the early stages of our legal struggle the Attorney-General said that he wanted Distillers to see the draft article. The Sunday Times sent it and the company's lawyers immediately realised that we had seen the company's internal documents, that they had reached us via Dr Phillips and that we had probably paid for them. So they began an action for their return and for a permanent injunction to prevent us from using them. They had a winning case.
We had only one defence. An exception to the confidentiality rule might be if disclosure documents reveal acts of such iniquity that publication would be justified in the public interest. In 1974 we lost, the judge saying that the protection of discovery documents was more important.
When we went to the European Court in Strasbourg it was in the knowledge that whatever was said there, we would not be able to publish the draft article - the injunction for breach of confidentiality still precluded it but the European Commission, for some reason (mischief, I like to think), attached the whole draft article as an appendix to its decision. Thus it became a court-privileged document and we could publish it so long as we didn't change it. In July 1977 we did so.
Distillers were unmoved by the article. It was pressure from their shareholders that did it, especially Legal and General Assurance Society, which had 3.5 million shares.
Boycotts started to build in America. This made headlines in Britain and the City knocked pounds 335m off the value of shares.
Though in the end much of the pressure came from America and a press campaign untrammelled by British legalities, one way or another, all our aims were achieved. The children got a decent financial settlement; the process for licensing drugs for sale in Britain was tightened and the law on contempt was reformed.
But as the years passed, some of us became painfully aware that the power of this dreadful drug to blight the lives of all who came in contact with it had not ended with The Sunday Times' campaign.
To start with, some of the parents found the exposure in the press a painful experience. Next, there was discontent over the way the compensation was paid. Individual payments were made directly to the victims according to the severity of their deformities, but pounds 32m (pounds 27m from Distillers and pounds 5m from the British government) was paid in instalments into the specially created Thalidomide Trust. There were inevitable resentments. Parents who had fought for 10 years for the compensation and thought that The Sunday Times had won it for them were disillusioned to discover that the money did not come directly to the children. The money brought physical comfort to the thalidomide children but it did not always bring happiness.
One victim, Graham Tindale, complained, "People look on us as though we're football-pools winners".
As time passed, the curse of thalidomide seemed to home in on all who had had anything to do with it.
Once we knew about the thalidomide scandal, we had to write about it, imperfect though The Sunday Times campaign was. But we cannot claim all the credit for the outcome. The truth is that the power of the press is greatly overrated; as Bruce Page put it, a newspaper editor could have some influence on policy in Ulster, the success of a play, the outcome of an industrial dispute or, for that matter, the behaviour of a big corporation like Distillers. But he could not have decisive influence on anything n
Extracted from `A Hack's Progress' by Phillip Knightley, published this week by Jonathan Cape, pounds 17.99.
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