Day 146 - 03 Jul 95 - Page 38
1 essence, it is those three paragraphs we are wishing the
2 Defendants to state, all facts and matters relied on in
3 support of those paragraphs. It is a short application,
4 but we do feel that is required. Certainly we cannot hope
5 to go about dealing with this matter in terms of any
6 evidence that we wish to call in rebuttal to that malice
7 plea without having more detail. Certainly, in terms of
8 discovery, we do need to know more of what the Defendants
9 have in mind on that.
10
11 I said I would refer your Lordship to the White Book on
12 malice. This is as much for the Defendants' benefit as
13 anyone else. It is page 314 of the White Book, Order 18,
14 rule 12. My Lord, it is 18/12/14, (46); it is really the
15 second paragraph which I will read out because the
16 Defendants do not have the White Book: "In the publication
17 of defamatory matter, malice is presumed, but if it is
18 sought to destroy the defence of fair comment or qualified
19 privilege by an allegation that the defendant was actuated
20 by express malice, particulars of the facts and matters
21 from which such malice is to be inferred must be contained
22 in the reply".
23
24 Then what is, perhaps, a better reference, Order 82, rule
25 3(3), which is that specifically on defamation. That
26 says: "Where in an action for libel or slander the
27 plaintiff alleges that the defendant maliciously published
28 the words or matters complained of, he need not in his
29 statement of claim give particulars of the facts on which
30 he relies in support of the allegation of malice, but if
31 the defendant pleads that any of those words or matters are
32 fair comment on the matter of public interest or were
33 published upon a privileged occasion and the plaintiff
34 intends to allege that the defendant was actuated by
35 express malice, he must serve a reply giving particulars of
36 the fact and matters from which the malice is to be
37 inferred."
38
39 That must mean helpful facts and matters. It cannot just
40 mean simply reasserting that the other party is malicious
41 without giving any detail, which is what I say has been
42 done by the Defendants in their pleading.
43
44 So, unless I can assist your Lordship further?
45
46 MR. JUSTICE BELL: No. The only thing I would like to ask is
47 what time compass are you envisaging here for both your
48 applications if I were to make the orders?
49
50 MR. ATKINSON: I had better consult with my leader or I will be
51 sacked. The consensus is that I should seek an order that
52 it be done by the end of this term.
53
54 MR. JUSTICE BELL: Yes. I am just thinking if we are going to
55 keep going, running through witnesses, whether that is
56 realistic or whether I ought to give a date during the
57 vacation, perhaps allowing the Defendants some time for a
58 complete break, if they wish to take it, in thinking about
59 this litigation, and then add on a period of time and have
60 a date which is however before we resume late in
