Donoghue v Stevenson: The Junior’s Notebook
William Rankine Milligan, The Rt Hon. Lord Milligan PC, KC1
What follows is an extract from an unpublished autobiography of Lord Milligan who, long before his elevation to the Bench, appeared as junior counsel for Mrs Donoghue in both in the Second Division of the Court of Session, in Scotland, and later in the House of Lords. Accompanying this extract, reproduced exactly as written by Lord Milligan, is a facsimile reproduction of the notebook he used during the hearings at the House of Lords, complete with his doodles and notes.
Mrs Donoghue’s case was that in August 1928 she went out with a friend. They went into an ice-cream shop and her friend stood Mrs Donoghue a bottle of ginger beer. The bottle was opaque. Mrs Donoghue drank some of the ginger beer and when later she was refilling her glass a decomposed snail floated out of the bottle. She maintained that she had suffered a severe attack of gastro-enteritis as a result of this distressing experience, and raised an action against Stevenson, the manufacturer of the ginger beet on the grounds of negligence. Although the official reports do not refer to it I have a recollection that her action was also directed against the retailer, but that proceedings against him were at an early stage abandoned because of the fact that the bottle was opaque and the retailer had accordingly not had any chance of examining its contents. The real issue was between Mrs Donoghue and the manufacturer, Stevenson; the latter maintained that the case against him was irrelevant in respect that he did not owe any duty to Mrs Donoghue as she had not any contract with him. The Lord Ordinary2 declined to dismiss the action there and then and ordered an enquiry into the facts. Stevenson appealed to the Second Division. It was at this stage that I was taken into the case on behalf of Mrs Donoghue.
We held the judgment of the Lord Ordinary but nevertheless we were on a very sticky wicket as in 1929 the Second Division had held in a case that was indistinguishable in law that a manufacturer did not owe a duty to ultimate consumers. The only distinction on the facts was that in the earlier case it was a mouse and not a snail that had emerged from the bottle. I do not remember how the Lord Ordinary had distinguished the case, but the majority of the Second Division were quite adamant that they were bound by the earlier case. The exception was Lord Hunter, who had dissented in the previous case and who felt able to dissent – or as Lord Macmillan preferred to put it to “protest”.
So off we went to the House of Lords. My senior was George Norton, K.C., and against us we had a redoubtable team, Solicitor-General Normand, who although a Law Officer was at that date entitled to take private practice, and J. L. Clyde, who had been in the earlier case. The case was heard by five Lords of Appeal in Ordinary, Lords Buckmaster, Atkin, Tomlin, Thankerton and Macmillan. The hearing took place on 10th and 11th December, 1931, but it was not until 26th May 1932 that their Lordships were ready to deliver their judgments. I was instructed to attend what in the Lords is known as the “consideration” – in Scotland a case before a single judge is put out “For Judgment”, and a case in one of the Divisions is put out “For Advising.”
The first judgment, or “Speech” as it is called in the Lords, was delivered by Lord Buckmaster; he was against us. Lord Atkin came next; he was in our favour. Then Lord Tomlin, who agreed with lord Buckmaster. Lord Thankerton rallied to our support and so it was “all square and Lord Macmillan to come”. That great and wise man joined the Atkin-Thankerton axis and victory was ours. It appeared that the sharp division of opinion might be accounted for by the fact that Lords Buckmaster and Tomlin were “Chancery Men”, whereas the other three judges were not so technically minded. It is interesting to note that it was Lord Macmillan who gave the “casting vote,” as it was he who only three weeks previously had given the “casting vote” in the famous case between Waterlow & Sons and the Bank of Portugal. I mention this because my otherwise very logical father-in-law who was a great friend of Macmillan’s never forgave him for a decision for which he held Macmillan wholly to blame merely because he gave the final and decisive judgment.
The decision in the House of Lord did not mean that Mrs Donoghue had won her case. All that it meant was that she was given a chance to prove that Stevenson had been negligent and that his negligence had caused her injury.
When the case got back to Scotland strenuous efforts were made by the Solicitors on both sides to have the case “settled” but Mrs Donoghue had by this time begun to feel very important and she was determined not to settle her claim unless she got a large amount of damages. Eventually, however, she was made to see reason and her case came to an end. The legal principles, however, which the case had raised have been discussed in more subsequent cases than those of any other case and they have been applied to the most varied circumstances.
English lawyers were, I think, puzzled by Mrs Donoghue’s case, and they somehow or other got it into their heads that in the end of the day it had been found that there never had been a snail. This, of course, was rubbish as there never was an enquiry into the facts. The English also got confused about the Scottish method of designing a married woman. In her action and in the Scottish Reports Mrs Donoghue was designed as “Mrs Mary McAlister or Donoghue”. Mrs Donoghue has no doubt long ago got over her stomach-ache, but her name will live long in the minds of layers. In 1974 the “Sunday Times” decided to have a feature article on this case and made strenuous efforts to find Mrs Donoghue. They failed to do so as it appeared that she may have been killed in an air-raid during the war3.
1 Bill Milligan was born in Caputh in 1898. He grew up in Perthshire and Glasgow, where his father was a Professor of Divinity. In 1917, whilst in his final year at Sherborne School, he was called up and served with the Highland Light Infantry in Greece. In 1919 he joined University College, Oxford where he studied modern history. Whilst at university, he became an accomplished athlete and in 1920 was a member of an Oxford University relay team that, whilst competing in the US, broke a world middle distance record. Bill retained a keen interest in athletics, and indeed sport generally, throughout his life. After graduating from Oxford with a Fourth (which he put down to “a number of competing interests and distractions”) he studied law at Glasgow University. He was admitted as an advocate in 1925, and appointed a King's Counsel in 1945. Between 1951 and 1954 he served as Solicitor General for Scotland and as Lord Advocate from 1954 to 1960. In 1956, at the height of the cold war he had the, no doubt surreal, experience of showing Nikita Khrushchev, then First Secretary of the Soviet Communist Party, around Arthur’s Seat in Edinburgh. Bill was elected MP for Edinburgh North in 1955, where he served until 1960. In 1960 he was appointed to the bench, with the judicial title Lord Milligan. Throughout his life Bill was known for his kindness and his wit. He had a wide circle of friends from many climes and spheres. Following his death in 1975, he was described in the Scots Law Times as a “truly lovable man, shedding happiness all around”. [back]
2 Lord Moncrieff, see www.scottishlawreports.org.uk/resources/dvs/lord-moncrieff.html [back]
3 But, for a contrary story, see ‘The Most Famous Litigant’ at www.scottishlawreports.org.uk/resources/dvs/most-famous-litigant.html [back]