Day 284 - 22 Oct 96 - Page 42
1 as a comment on the things that you are able to prove about
2 the judge's behaviour, but if those things were serious
3 enough, then you could say: "What is more, it is true, as a
4 matter of fact, that he is not fit to hold office." More
5 difficult, if I go to a play and I say that I think it is a
6 very bad play; very difficult to see how that could ever be
7 a question of fact. The relevant paragraph in Duncan &
8 Neill is 12.11 on page 61.
9
10 MR. MORRIS: That does seem to be logical where some things are
11 obviously only opinion and some things have the character
12 of both opinion and fact.
13
14 MR. JUSTICE BELL: Yes. I am particularly interested by this
15 when we get to employment. If one took the "L" out of the
16 word "play", I am not sure the answer would be the same.
17
18 MR. RAMPTON: My Lord, it will always depend on the context,
19 the effect which the context would have on the mind of the
20 reader. I shall have something to say about that when we
21 get to employment.
22
23 MR JUSTICE BELL: Yes. Anyway, at the moment, you reserve your
24 position?
25
26 MR. MORRIS: Yes. It seems now we have -- yesterday, I was
27 fairly convinced I understood what was being expected; then
28 it all changed with the discussion we had yesterday; and
29 now it has changed again. But that is only helpful,
30 because -----
31
32 MR. RAMPTON: The only thing I should add then ---
33
34 MR. MORRIS: Hopefully, common sense will prevail.
35
36 MR. RAMPTON: -- so that it is absolutely clear to the
37 Defendants: as a defendant in a libel action, defamation
38 action, you cannot keep your options open; you have to
39 decide whether you are defending a particular set of words
40 in the defamatory document as a comment or as a statement
41 of fact. You cannot have your cake and eat it. You have
42 to decide which it is.
43
44 MR. MORRIS: Well, I think it is in the interests of justice
45 that we have protection from the courts because, you know,
46 some of these matters are just over our heads. Basically,
47 common sense should prevail. It is obvious that some
48 things are both comment and fact.
49
50 MR JUSTICE BELL: Yes. But what is being said is that you have
51 to decide which way you are defending it: are you going to
52 defend it by justification as a statement of fact or are
53 you going to defend it as comment with a defence of fair
54 comment?
55
56 MR. MORRIS: I think that in some of the examples which are --
57 for example, bad conditions -- it is clearly not only a
58 comment, but it is a statement of fact as well.
59
60 MR. JUSTICE BELL: But you have to decide which way you are
