Day 001 - 28 Jun 94 - Page 31


     
     1                                                     2.00 p.m.
 
     2   MR. RAMPTON:  My Lord, the defences are justification.  That is
              to say, that the substance of the words are true and fair
     3        comment which is to say, in so far as the words consist of
              opinion or comment, they are fair comment on a matter of
     4        public interest.
 
     5        In dealing briefly with those two defences, I shall also
              deal with the question of malice which in answer to the a
     6        defence of fair comment, if proved, defeats the defence.
              My Lord, as a preliminary (which I am not going to refer
     7        your Lordship to now, but I give your Lordship the
              reference), the principles relating to fair comment, the
     8        legal principles, are summarised at paragraph 12.02 of
              Duncan & Neil on defamation.  The principles of law
     9        relating to malice in relation to a plea of fair comment
              are summarised at paragraph 17.10.
    10
              My Lord, I do not envisage having to spend very much time
    11        on either or any of these issues.  I will deal with fair
              comment in a moment.  That will take a very little time
    12        because, my Lord, as I have suggested, if I am right, the
              vast majority of the defamatory allegations in the leaflet
    13        are statements or allegations of fact.  If so, they are
              not susceptible to the defence of fair comment at all;
    14        they are either true or false.
 
    15        But, my Lord, your Lordship may in the end feel there are
              some few parts of the leaflet which may be regarded as
    16        comment.  If so, there are two questions for your Lordship
              to decide:  The first is an objective question.  Are those
    17        comments such as a fair minded person holding strong views
              on the matter in question might honestly make on the facts
    18        which have been proved before the court?  The second
              question is this:  If so, were the defendants in this case
    19        (and this is a subjective question) in publishing those
              comments motivated primarily by a desire to express their
    20        honest opinions about the matter in question or, on the
              contrary, was their dominant motive an ulterior or
    21        improper one, such as a desire to damage or destroy
              McDonald's for reasons quite other and at any price in
    22        truth or fairness.
 
    23        My Lord, at this stage it would not be right for me to
              make any submission about how your Lordship might be
    24        inclined to answer those questions at the end of the
              case.  However, as matters presently stand, I do submit
    25        that the plaintiffs are able to assert, first, that the
              factual basis for the allegations contained in the 
    26        leaflet, whether they be statements of fact or comments, 
              is and always was so flimsy that the inference may 
    27        legitimately be drawn by the court that the defendants'
              dominant motive for publishing them must have been an
    28        ulterior or improper one.
 
    29        Secondly, this, that by reference to the material to which
              I have already drawn your Lordship's attention, it may
    30        credibly be suggested by the plaintiffs that that motive,
              that improper motive, was simply to "smash" -- I use that

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