Day 313 - 13 Dec 96 - Page 54


     
     1   MR. RAMPTON:  The significance of that passage, of course, is
     2        that there Lord Diplock is talking about the position where
     3        a defendant believes that all of what he wrote, positively
     4        believed, that all of what he wrote or published was true.
     5        That that is so is shown by the first sentence:  "Judges
     6        and juries should, however, be very slow to draw the
     7        inference that the defendant was so far actuated by
     8        improper motives as to deprive him of the protection of
     9        privilege", and then I stress these words:  "...  unless
    10        they are satisfied that he did not believe that what he
    11        said or wrote was true or that he was indifferent to its
    12        truth or falsity".
    13
    14        If that condition be fulfilled and the defendant is, for
    15        example, indifferent to the truth or falsity of a
    16        substantial part of the defamatory content of what he
    17        published, then no such slowness on the part of the
    18        tribunal of fact is required, as one can see from the
    19        earlier part of the judgment.
    20
    21   MS. STEEL:  Where was that bit you just read out?
    22
    23   MR. MORRIS:  What line was that, sorry?
    24
    25   MR. JUSTICE BELL:  It is in paragraph 2 of the written
    26        submissions on malice.
    27
    28   MS. STEEL:  He was actually reading from the page; it was not
    29        additional bits?
    30
    31   MR. RAMPTON:  No, no, I added the additional bit by way of
    32        submission.
    33
    34   MS. STEEL:  It was not a quote, then?
    35
    36   MR. RAMPTON:  Some of it was a quote and some of it was not.
    37
    38   MS. STEEL:   Sorry, I got confused.
    39
    40   MR. RAMPTON:  My Lord, then on the submissions that Ms. Steel
    41        made in relation to the defence of qualified privilege to
    42        the counterclaim, it is, of course, the occasion of
    43        publication which is privileged.  It is not the creation of
    44        the document that Mr. Morris made the same mistake in
    45        relation to his own production of the leaflet complained
    46        of.  It is the occasion of publication which is
    47        privileged.  In that regard particular importance, we
    48        suggest, should be attached to the chronology.
    49        Your Lordship will remember that the last of the offensive,
    50        in the sense of aggressive, document by the Defendants --
    51        there were five of them in the early part of 1990 -- but
    52        the last was published on the 5th March and the first of
    53        the Plaintiffs' defensive documents was not published until
    54        nine days later, on the 14th March, 1994.
    55
    56   MR. JUSTICE BELL:  Yes.
    57
    58   MR. RAMPTON:  My Lord, then finally, before I come to the
    59        article 10 point, in relation to the question of how far
    60        can a plaintiff be said to have a general bad reputation

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