England and Wales High Court (Administrative Court) Decisions

QUEEN ON APPLICATION OF MATTHIAS RATH B.V.; MATTHIAS RATH LTD The Advertising Standards Authority Ltd and The Independent Reviewer of the Advertising Standards Authority Ltd [2000] EWHC Admin 428 (6th December, 2000)

Case No: CO/4041/2000

IN TH HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Law Courts

50 West Bar

Sheffield S3 8PH

Wednesday 6^th December 2000

(1)

(2)

(1)

(2)

TURNER J

1. This is an application for permission judicially to review two separate but related decisions. The first relates to the proposed publication of the adjudication by first named defendant, scheduled to take place on 8 November 2000, in relation to a complaint made by the Barking and Havering Health Authority. The complaint arose out of the contents of a leaflet issued by the above named first claimant to promote health products. The second decision which the claimants wish to challenge is that of the second defendant in refusing the first claimants' request for reconsideration of that same adjudication by the first defendants. The claimants also sought prior restraint to prevent the proposed publication of the adjudication. At the conclusion of the oral application, I announced that the application for prior restraint would not be granted. I reserved consideration of the application for permission to apply for substantive relief until the claimant had submitted written submissions by way of reply.

History

2. At some stage in the later part of 1999 or the early part of 2000, the first claimant published a leaflet which was in the nature of an advertisement which made a number of claims in relation to products it was promoting, to which the above named health authority took exception. The appropriate body for the consideration of such claims was and is the first defendant. On 23 May 2000, the first defendant wrote to the firstclaimant requesting that it supply copies of translations, into the English language, of testimonials which had been referred to in the leaflet. It also sought further information in relation to the claim that the first claimant had been responsible for the withdrawal of a government proposal to prohibit the dissemination of information in relation to natural health. No reply was forthcoming to this request. So it was that the first defendant wrote again to the first claimant giving it until 13 June to provide its response. On this date the first defendant sent a copy of its draft recommendation and report stating that comments on its factual accuracy would be entertained if received within the following seven days. On 27 June, solicitors acting for the claimants told the first defendant that they wished to make comments on the factual accuracy of the report. On 30 June, the first defendant informed the first claimant that the recommendation contained in the draft report had irreversibly been submitted to its council which had endorsed the original recommendation. On the same date, notification was sent that the adjudication would be published on 16 August in the form attached to that letter. Its terms were in accordance with the original draft. The relevant parts of the leaflet of which complaint was made were as follows:

Heart attacks and strokes are not diseases, but - similar to scurvy - the consequence of vitamin deficiency and they are preventable by optimum intake of vitamins ... The results of vitamin research leave no doubt that such other widespread diseases as high blood pressure, heart failure, diabetic circulatory problems, osteoporosis and even cancer can also be controlled by optimum intake of essential nutrients ...

(T)he British Government was about to forbid forever the dissemination of natural health information in relation to vitamins and other natural therapies. What forced the Government to withdraw this unconscionable legislation was our previous health news ... that had been distributed during the first weeks of August ...

The complaints and the adjudication were as follows:

3. On 14 July, solicitors for the claimants wrote to request a review of the adjudication and explained the basis of their request. So far as material to the present applications, the letter enclosed translations of the testimonials and further evidence in relation to the claimants' claim that they had been politically effective in persuading the Government to withdraw its proposed legislation identified as MLX 249. In relation to complaints 1 and 2 above, the letter acknowledged that many of their clients' views were not shared by sections of the scientific and medical communities and asserted that it was inappropriate for the Authority to seek to restrict the clients' ability to state such views just because they might be inconsistent with medical orthodoxy. However, it was accepted that if the Authority considered that the leaflet was capable of being misleading, their client would apologise. It may perhaps be noted at this stage that this particular response is at odds with the didactic nature of the claims advanced in the leaflet which had provoked these complaints. In relation to complaint number 4, above, it was asserted that the first claimant had not known that translations of the testimonials had been required until the letter from the Authority of 13 June, above.

4. On 14 September, the second defendant responded to the above letter. As to complaint 1, he wrote

I do not accept your point about freedom of speech as proof of the existence of a substantial flaw. In any event the whole system of self-regulation of advertising material implies some limitations to an advertiser's communications to the public.

* * *

I consider that the ASA's challenge about the testimonials was a legitimate one and remains so. The ASA asked for translations in May but they did not arrive until they were sent to me in July. The late arrival does not undermine the truth of the statement that in the adjudication they had not been provided by the time that it was made.

5. On 26 September the first claimant was notified that the complaint adjudication would be published on 8 November. On 10 October, solicitors for the claimants told the Authority that they had instructions to apply for judicial review "of the ASA's adjudication" and inviting the Authority to accept that publication of the adjudication would be inappropriate before the application had been made. Two days later solicitors for the defendants sought information as to the basis of the proposed application. On 20 October those solicitors wrote again noting that they had not yet been provided with the information and made a number of preliminary observations about what they perceived as the difficulties which any such application would face. They also said that the report due to be published on 8 November was in the process of being printed. On 24 October the defendants' solicitors informed the applicants that first copies of the report would be distributed on 3 November and that approximately 4,500 copies were being printed.

6. On 24 October the claimants' solicitors indicated, without prejudice to other grounds, that the claimants would be relying upon: 1. The fact that the second defendant had not appropriately applied the tests in the ASA code in respect of testimonial and medical evidence prior to conducting his review and 2. that publication of the adjudication would constitute substantial interference with the claimants' freedom of speech contrary to Article 10(1) of the European Convention on Human Rights (ECHR). They also complained about the lead time required for printing and distribution of the adjudication reports and threatened to apply for an injunction to restrain publication until resolution of the matters in dispute. On 27 October, the defendants' solicitors replied that they were still unaware of the precise factual basis of the proposed application and complained of the delay which the applicants had allowed to elapse since they had been apprised of the proposed date of publication. In a further letter of 1 November, they requested that they be given proper notice of the proposed application and indicating that if the applicants were successful in obtaining one it would involve their clients in having to rewrite their monthly bulletin.

The procedural point

7. The application was issued on 2 November. On 3 November Richards J made an order on a `paper' application adjourning it on notice to the defendants to be given on 3 November, if possible. I heard the application on that date. The defendants had filed evidence and appeared by counsel.

8. This last point gives rise to a question of procedure under the new Part 54 of the Civil Procedure Rules. Under Rule 54.8 a person who has been served with a claim form and wishes to take part in the proceedings is required to file an acknowledgement of service within 21 days which must "set out a summary of his grounds for doing so". In the present case, at the time of the hearing of the claimants' application, the defendants had not filed an acknowledgement of service but had filed evidence and did appear at the hearing. Under rule 54.12 it is provided that:

(1) This rule applies where the court without a hearing -

(a) refuses permission to proceed; or

(b) gives permission to proceed -

(i) subject to conditions; or

(ii) on certain grounds only

(2)

(3) The claimant may not appeal but may request the decision to be reconsidered at a hearing.

9. The concern of counsel for both parties was that if the claimants were unsuccessful in obtaining either permission to bring the proceedings or to obtain prior restraint, they would be unable to appeal to the Court of Appeal and the whole matter would have to be "re-considered at a hearing". Since, in my judgment a hearing at which counsel have appeared on behalf of both parties and occupied the time of the court for a period in excess of four hours has taken place, there is, in reality, no problem. The provisions of paragraph (3) of rule 54.12 only applies when the court has "without a hearing" refused "permission to proceed". There is no doubt but that, in ordinary language, a "hearing" has, indeed, taken place. It may be that the rules do not make express provision for what is to happen in such circumstances as the present, but, in the absence of express provision, the court still retains inherent powers to regulate its own procedure. Where, as happened in this case, a party has filed substantial evidence which would more than satisfy the requirement to "set out a summary of his grounds", see Part 54 rule 9, and has also appeared at a hearing with the permission of the Court, it is now too late for the claimant to contend that the defendants have not acknowledged service within Part 54 of the CPR. In my opinion, the effect of the order made by Richards J, and the proceedings which took place before me, can and should be treated as though either the defendants had acknowledged service, alternatively the claimants have waived the requirement as to the filing of an acknowledgement of service.

The Regulatory framework

10. Under The Control of Misleading Advertisements Regulations 1988, made under delegated powers from the European Communities Act 1972, provision is made for the statutory recognition of "established means of dealing with ... complaints"; see Regulation 4(3) (a). It is further provided by sub-paragraph (4) of that regulation that in exercising his powers under the Regulations, the Director General of Fair Trading shall have regard to "the desirability of encouraging the control, by self-regulatory bodies, of advertisements". It is to be noted that the Director General has power under Regulation 5 of these Regulations himself to take legal proceedings in a case in which he considers that it is desirable to do so.

11. In the Explanatory note to the Regulations it is stated that:

The Director General ... is required to consider complaints ... about misleading advertisements. ... Before he considers a complaint the Director may require the person making the complaint to satisfy him that appropriate means of dealing with the complaint have been tried and that, despite being given a reasonable opportunity to do so, those means have not dealt with the complaint adequately. (Such means might include complaining to ... a self regulatory body, such as the Advertising Standards Authority. It is for the Director to determine what means he considers appropriate in any particular case.) In dealing with complaints the Director is required to bear in mind all the interests involved, including, in particular, the public interest, and the desirability of encouraging control, by self- regulatory bodies, of advertisements.

12. There exist The British Codes of Advertising and Sales Promotion the tenth edition of which came into force on 1 October 1999. The code applies to advertisements in newspapers and leaflets and makes detailed provisions for different media forms of advertising. The code itself extends to no fewer than 117 pages of closely written text. Fortunately, it is only necessary to refer to a few of its provisions. Thus:

¶3.1 Before submitting an advertisement for publication, advertisers must hold documentary evidence to prove all claims ... that are capable of objective substantiation. Relevant evidence should be sent without delay.

¶8.1 Advertisers may give a view about any matter, including the qualities and desirability of their products, provided it is clear that they are expressing their own opinion rather than stating a fact.

¶14.1 Advertisers should hold signed and dated proof for any testimonial they use..

¶50.1 Medical and scientific claims made about ... health-related products should be backed by evidence, where appropriate by trials conducted on people.

¶50.2 Advertisers inviting customers to diagnose their own minor ailments should not make claims that might lead to a mistaken diagnosis.

¶50.3 Advertisers should not discourage essential treatment.

¶68.4 ... (The chief tasks of the ASA) are to promote and enforce high standards in advertisements, to investigate complaints ...

¶68.6 The ASA investigates complaints from any source against advertisements and promotions in non-broadcast media. Advertisers are told the outcomes of the ASA's rulings and, where appropriate, are asked to withdraw or amend their advertisements or promotions. The adjudications reached by the Council at its monthly meetings ... are published in the ASA's monthly report.

¶68.22 Claims that are adjudged by the ASA Council ... that are not or cannot be verified, will be deemed to be contrary to the Codes.

¶68.23 Since the first Codes were published the number of laws designed to protect consumers has greatly increased. There are directives emanating from the European Community as well as more than 100 UK statutes, orders and regulations affecting advertising .... The ASA maintains a rapport with those administering any laws that have a bearing on advertising ... . The system is reinforced by the legal back-up provided for the work of the ASA by the Control of Misleading Advertisements Regulations 1988.

¶68.24 The Codes and the self-regulatory framework that exists to administer them, were designed and have been developed to work within and to complement these legal controls.

¶68.36 In exceptional circumstances, Council can be asked to reconsider its adjudication. Written requests for a review should be sent to the Independent Reviewer ... There are two grounds on which such a request can be made:

* Where additional evidence becomes available.

* Where a substantial flaw in Council's adjudication can be demonstrated.

The Independent Reviewer will decide whether there are grounds to proceed:

* The Independent Reviewer will evaluate the substance of the request with advice from two Assessors. ....

* If it is decided to proceed, the Independent Reviewer will conduct an investigation of the file and will compile a report and recommendation for the ASA Council.

¶68.39 A number of sanctions exist to counteract advertisements ... that conflict with the Codes: ... adverse publicity, which acts as a deterrent may result from rulings published in the ASA's monthly report.

¶68.40 The ASA is recognised by the Government as an effective means of controlling advertisements ... . Under (The Regulations) if a misleading advertisement ... continues to appear after the Council has ruled against it, the ASA can refer the matter to the Director General of Fair Trading ...

The decisions challenged

13. These are 1. the decision of the ASA to publish in its monthly report the adjudication into the complaint by the Health Authority and 2. The decision of the Independent Reviewer refusing the request of the claimants for reconsideration of the decision of the ASA in relation to the complaints.

Nature of the challenges

14. It is convenient first to give consideration to the challenge as it affects the Independent Reviewer. In concluding that his letter had stated that the (late) supply of the translations of the testimonials did not undermine the truth of the adjudication, it was submitted that the Independent Reviewer had misapplied or misinterpreted the Code as he had not expressly referred to the (now) translated testimonials or to evidence of patent and other experimental material from the United States. The submission was that the Independent Reviewer had considered the evidence as it existed at the time of the original adjudication, rather than the evidence as it was at the time at which he was asked to review the decision. It was submitted that the existence of the new evidence meant that there had been a substantial flaw in the original decision. Alternatively, it was submitted that in not referring to either class of new evidence, the Independent Reviewer had either ignored a material consideration or come to a conclusion which was not reasonably open to him. It was submitted that without indication that the Independent Reviewer had actually considered the fresh material, his decision was liable to be struck down. It was further submitted that if the report were to be published by the first defendants without amendment, which reflected the new evidence, it would have an adverse effect on the claimants' reputation and their business.

15. The Code itself recognises that a part of the self-regulatory sanction is that there will be adverse publicity. As originally drafted, the skeleton argument suggested that to the extent that the report will state that the testimonials had not been proved to be genuine, that would suggest that the claimants had published false information. In its revised form, this submission became that the report would raise a question mark over the integrity of the claimants' business methods.

16. The defendants' response on this point was both short and cogent. There was no substance in the suggestion that, by publishing the report in the terms of its draft, the first defendant was accusing the claimants of publishing false information. All it was doing was pointing out that the claimants had not justified the testimonials within the time limited by the firstdefendants. This is clearly right. As to the other complaints in relation to the draft report, it was submitted that the report was not inaccurate either in what it stated nor was there any adverse inference which could properly be drawn from its terms. The testimonials had not been translated into English at the date of the determination by the ASA Council, so the Independent Reviewer was entitled to comment entirely factually, as he had done. As to the remainder of the complaint against him, it was submitted that under the provisions of clause 68.36 of the Code, it was a matter for the exercise of the Independent Reviewer's discretion whether he should embark on a review in the light of any new evidence placed before him.

17. In support of the complaint which concerned the efficacy of the treatments advocated by the claimants, it was pointed out that evidence in relation to US patents and pilot studies had been before the ASA Council at the time of its adjudication; see letter from Dr Rath of 21 March 2000 in which he expressly referred to the patent study and to the claimed efficacy of the nutritional supplement programme. Evidence in regard to a pilot study which had been conducted was exiguous on its face and contained results in respect of nine patients only.

18. It could not therefore sensibly be said that the Independent Reviewer had exercised his discretion in such a manner that it was judicially reviewable. But there was the additional point that he had not adverted sufficiently to the reasons for his decision. Reference was made to the decision in the Court of Appeal of R v. Criminal Injuries Compensation Board ex parte Cook [1996] 1 WLR 1037 where at p 1043, Aldous LJ said

That being so, the observations of Lord Lloyd of Berwick in Bolton Metropolitan District Council are apposite. From his speech, a speech with which the rest of their lordships agreed, I believe it is clear that the board's reasons should contain sufficient detail to enable the reader to know what conclusion has been reached on the principal important issue or issues, but it is not a requirement that they should deal with every material consideration to which they have had regard. If the reasons given are sufficient, they cannot be reviewed in judicial review proceedings unless the board misconstrued their mandate or the decision is Wednesbury unreasonable.

19. In my judgment, the position is clear. Given the material which was already before the Council of the ASA when it made its decision which the claimants wished to be reviewed by the Independent Reviewer, it was not incumbent on him to do more than to say that the new material did not cause him to embark on a review. In short, the claimants had only themselves to thank that there were no translations of the testimonials available when the Council made its adjudication, the Independent Reviewer's comments on this were factual. The other material upon which the claimants now rely, was in large part, if not in whole before the Council at the time of its adjudication. There was not in respect of this so-called new evidence anything new which should have persuaded the Independent Reviewer that the original decision was flawed or that there was new evidence which he should review. Nor yet was there any need for him to have said more than he had.

20. The basis of the claim for prior restraint was that the effect of publishing the report of the adjudication was to infringe the claimants' right to freedom of expression contrary to the provisions of Article 10.1 of the European Convention on Human Rights (ECHR). The contention was that the adjudication would have an adverse impact on the reputation of the claimants and their business, that it would interfere with their right to express their political views in relation to the withdrawal of the proposed MLX 249.

21. The supposed basis of this claim repays careful scrutiny. It will have been noted that the claimants are not asserting that their freedom of expression or ability to impart opinions have been or will be impaired by publication. The complaint is focussed on the impact on their reputation if publication were to take place. Publication of the adjudication is a fresh act which provides a fresh opportunity for challenge. It may be that there is implicit within this complaint the same logical fallacy as permeated the submission that, to the extent that the claimants had not demonstrated the truth of their testimonials this meant that, the testimonials were false. Even in its modified form, the submission that publication of the report would question the integrity of the claimants, is not plausible as invoking infringement of the asserted Convention right. It was submitted that the first defendants could not rely upon the exceptions contained in Article 10.2 because the provisions of the Code were not "prescribed by law" even if they were "necessary in a democratic society" and "intended" for the "protection of health".

22. It was submitted that the first defendant was a public authority, for the purposes of the Convention. Without conceding this point, the first defendants did not argue to the contrary. It is clear that they wished to preserve the right to argue that they were not such an authority on some future occasion. It is unnecessary to do more than to observe that for the purposes of the present case, it suited the firstdefendants not to oppose the claimants' contention in this respect. But if there were serious doubt on the matter, I would have had to hear detailed submissions on the point which, I suspect was taken for tactical reasons rather than as a point of substance. As a preliminary appreciation, I would require much persuasion that the firstdefendants were not a public authority.

23. The claimants' argument proceeded along the following lines. A public authority acts unlawfully if its actions are incompatible with a Convention right. The ASA, is amenable to judicial review and is thus a public authority; see R v. Avertising Standards Authority ex parte The Insurance Service [1990] C.O.D. 42. If the monthly report were to be published by the first defendants as proposed, it would interfere with the claimants' right to freedom of expression. For Convention purposes, political speech and commercial advertising are both activities which are embraced by the phrase `freedom of expression'. For the purposes of this judgment, I am content to assume, but do not have to decide, that the sales literature of the claimants contains matter which is both advertising and political by nature. On the authority of Casado Coca v. Spain (1994) 18 EHRR 1 at p20, it was submitted that interference, for the purposes of Article 10.1, was capable of occurring when publication of an adjudication took place after the original material had been published. In the Casado Coca case the Barcelona Bar Council had reprimanded the applicant in relation to advertising which he was alleged to have carried out contrary to the rules of the Spanish Bar. It was held that such reprimands were capable of amounting to an interference with the applicant's freedom of speech or expression. The claim, however failed on its facts. On another issue which arises in this case, see below, the decision in Casado Coca will have to be considered in greater detail.

24. It was a major plank in the claimants' argument that the Codes of Practice of the ASA could not be described as amounting to "formalities, conditions, restrictions or penalties as are prescribed by law". It was submitted that, for this requirement to be satisfied, it was necessary that the domestic system of law should by way of statute, subordinated legislation or the common law by restriction by way of contract or consensual submission provide for the self-regulatory scheme. The argument proceeded on the hypothesis that in the absence of a contract or other form of consensual submission to the authority of such a code, the restrictions imposed upon advertisers, and the powers which the ASA sought to exercise, could not be brought within the meaning of the phrase "prescribed by law". The only restrictions sanctioned by Article 10.2 were those introduced by democratic or judicial process. So, it was submitted that the interference with the right in question had to have some basis in domestic law which must at the same time be "adequately accessible". This means that the applicant must have the means of knowing what are the legal rules in play. Finally in this area, an applicant needs to be able to appreciate, with the aid of appropriate advice, and with a degree of certainty what the consequences of his actions will be; see Silver v United Kingdom 5 EHRR 347 at 372 ¶¶ 86, 87 and 88. Reference was also made, in this context to Barthold v. Germany 7 EHRR 373 at 398 ¶¶ 45, 46 and 47 from which it could be deduced that parliamentary delegation was an essential requirement for the rules in question to acquire the force as having been prescribed by law.

25. The broad submission made on behalf of the firstdefendants was that the expression "prescribed by law" should not be accorded a restrictive meaning. Drawing on Barthold v. Germany (above), it was submitted that interference, if it was to fall within the derogation contained in Article 10.2, had to have some basis in domestic law which had itself to be both accessible and formulated with sufficient precision to enable the individual to regulate his conduct either to be able to conform to it or, at the least, appreciate that he was at risk of sanctions if he were to disregard it; see ¶45 of the judgment. It was held in Murray v. United Kingdom that provided there was a basis in domestic law for the imposition of the relevant restrictions, that would satisfy the threshold requirements of Article 10.2; see ¶88 of the judgement. If further account is taken of the self-regulatory status of the ASA and its regime under the auspices of the Regulations, it was submitted that the first defendants' Code of Practice was indeed prescribed by law.

26. In my judgment, the application for permission to bring proceedings for judicial review has to fail, just as the application for an order of prior restraint has already failed. The reasons can be shortly stated. I entertain no doubt that the Code of Practice, which has an underpinning of subordinate legislation and which is readily accessible is "prescribed by law". In the absence of a self-regulatory code, which met the implicit approval of the Director General of Fair Trading, direct action could have been taken under the Regulations, albeit they are less specific than the elaborate provisions of the Code of Practice. The Code of Practice is readily accessible and its provisions are sufficiently clear and precise to enable any person who is minded to place advertisements to know within what limits they are likely to prove acceptable and will also know what are the consequences if he were to infringe its provisions. In these circumstances, given the statutory underpinning, albeit short of direct statutory effect, the Code of Practice meets the purposive intentions of Article 10.2. An intending advertiser, moreover, can readily discover how to frame his advertisement without infringing the Code's provisions and will also know the consequences if he does not comply with them. Moreover, the advertisements themselves were explicitly concerned with matters of health as a consequence the requirement that the challenged rulings were "necessary for the protection of health", in the sense that the advertisements were capable of conveying misleading information, was fully met.

27. The applicant did not address any argument to the effect that if the Code complied with the Article 10.2 limitation of being prescribed by law, its provisions were not reasonably necessary in a democratic society. This was eminently a wise decision.

28. It remains to consider the first defendants' submission to the effect that what the claimants were seeking to protect was not the right to assert that they had been effective in obtaining the withdrawal of the proposed AMX249, as constituting an expression of political opinion, but their reputation. Such an objective was plainly outside the protection afforded by Article 10.1. It is quicker to dispose of the claimants' argument in relation to expression of political opinion first. On a proper reading of the claim that the claimants' had been effective in obtaining the withdrawal or abandonment of the proposed MLX249, the claim was not one which asserted any political opinion. It was a claim based on the proposition that the claimants had been effective in persuading the Government, or the relevant governmental agency to change its mind. I have not been persuaded that such an activity, even if the underlying factual proposition had been proved (which it has not), was the expression of political opinion. It was an attempt to persuade a governmental agency to change its mind. As to the right to freedom of expression it has been said

The nature of the expression which is restrained or interfered with by the state will determine the strength and the cogency of the justification for the interference required by the court. Accordingly, where the interference is with political speech rather than commercial or artistic speech, the court generally requires the strongest reasons to justify the impediments to free speech

See Lester and Pannick Human Rights Law and Practice §4.10.8. In my judgment, the public interest is served by the publication of the ASA monthly report, one of the objects of which is to notify the media world of advertising which is not of an acceptable standard. In the instances of which the claimants complain the ASA was clearly entitled to reach the conclusions which it did. There is, after all, no challenge mounted by these proceedings to the substance of the Authority's rulings.

29. It remains to consider the reasons why I refused the application for prior restraint. The first is that the claimants had not satisfied me that they had grounds for bringing proceedings for judicial review, see above. Secondly, there can be no doubt but that they had been guilty of extreme delay in making their application for permission. Despite the attempts made by their counsel to satisfy me that the first defendants, as a public body, were remiss in sending the material for publication to the printers and arranging distribution when they had been told, I eschew the use of the word `knew', that the claimants intended to bring proceedings for judicial review, the reality is that the claimants had threatened that they would be making an application, but they never responded to the first defendants' requests for information as to the grounds upon which they would be seeking relief. If the first defendants had delayed printing or distribution against the mere threat of proceedings being brought, they would lay themselves open to any threat a disgruntled advertiser was minded to make. The first defendant was, in my judgment, entirely correct in their decision to continue with printing and distribution of the report while leaving it to the claimants, who had been given early warning of the intended date of publication, to start such proceedings if they thought fit.

30. The claimants had relied on the decision of Popplewell J in Regina v. The Advertsing Standards Authority Ltd ex parte Direct Line Financial Services Ltd (transcript 8 August 1997). In that case, Popplewell J, disagreed with an earlier decision of Laws J, in Regina v. Advertising Standards Authority Ltd ex parte Vernons Organisation [1992] 1 WLR 1289, which was on all fours with the case before him. Both cases raised a question similar to the present. Popplewell J approached the matter as if the dispute between the parties existed in private law whereas Laws J considered that the matter properly lay in public law. It is probably undesirable that I should add any additional fuel to this judicial dispute. More than ever is this so since its resolution is not determinative of the present case. Having cautioned myself in this way, however, I feel constrained to add my piece. The whole basis of the claimants' application is that this is a public law matter. Indeed, the claimants much relied on the public law status of the firstdefendants as supporting their claim for prior restraint. In my judgment, it would be wrong for the court to apply a private law response to such a claim. That would be unjust to the first defendants as well as the public who have an expectation that a body the first defendants will publish its opinions in a manner and time that is appropriate. They should only be prevented from doing that on pressing grounds. None have been suggested in the present case. Unhesitatingly, do I support the approach of Laws J.

31. For the above reasons, the application for permission must be refused.