Day 146 - 03 Jul 95 - Page 37


     
     1        simply is not good enough to put down these particular
     2        paragraphs as being particulars of malice.  All they, in
     3        effect, do is to set out the contention of the Defendants
     4        that the Second Plaintiff was malicious in publishing these
     5        documents.  That is all it does.  It does not go on to give
     6        any facts or matters supporting that contention.
     7
     8        What it is like, my Lord, is if one is doing a pleading, a
     9        reply alleging malice, normally in a libel action, those
    10        three paragraphs that are called particulars, those are the
    11        wrapping up paragraphs.  One has done a whole stream of
    12        facts and matters which one says shows malice, and then one
    13        wraps it up by saying that they publish knowing the untruth
    14        reckless as to truth or falsity.
    15
    16   MR. JUSTICE BELL:  I appreciate it is not your pleadings.  I am
    17        asking you to be devil's advocate in a sense, but what sort
    18        of particulars might be in this case, other than that the
    19        Second Plaintiff just got so cross with the Defendants that
    20        ----
    21
    22   MR. ATKINSON:   That would not, of course, be in our case.  That
    23        certainly would not be malice under Horricks and Lowe,
    24        Horricks and Lowe being the House of Lords' case on
    25        qualified privilege.  It certainly would not be.  That is
    26        what Horricks and Lowe was all about, that anger was not
    27        enough to be said to be malice in law.
    28
    29        What I will do, the way I can reply to your Lordship on
    30        that is not to start speculating on what the Defendants
    31        might or might not put in any further and better
    32        particulars, but to say the sort of thing that we have put
    33        in in our reply alleging malice, i.e., that there is no
    34        truth in the allegation concerned and the Defendants --
    35        sorry -- actually it is better, I think -- it is a very bad
    36        point, my Lord, on the reply.  So what I will do I would
    37        rather say what we have put in our defence to counterclaim
    38        and our further and better particulars.  There we have set
    39        out in those particulars all sorts of grounds for inferring
    40        that the matters were published knowing them to be untrue;
    41        for example, that we have provided evidence which went
    42        against what was said in the leaflets, and the fact that,
    43        to put it crudely, the Defendants had it in for McDonald's
    44        and continue to have it in for McDonald's, and continue to
    45        publish libels on McDonald's notwithstanding any material
    46        presented in this case or any evidence that is given on
    47        either side.  So it is that sort of thing.  I do not
    48        really, with respect, want to go too far into the realms of
    49        what might be pleaded.
    50 
    51        In essence, one simply is seeking all facts and matters 
    52        relied upon to support the contention that the paragraphs 
    53        that are now pleaded stand up.  So it would be all the
    54        facts and matters.  As the request -- your Lordship,
    55        I hope, has my request ----
    56
    57   MR. JUSTICE BELL:  Yes.
    58
    59   MR. ATKINSON:  -- which states, "... all facts and matters
    60        relied upon in support of the above contention".  So, in

Prev Next Index