Day 146 - 03 Jul 95 - Page 36
1 stage, in my submission, to abide by their obligation on
2 discovery and to give such documents as, in their opinion,
3 are in their possession, custody or control. If necessary,
4 there will have to be a further argument as to whether they
5 are or are not in their possession, custody or control.
6
7 The only thing I would say is that one has heard from the
8 Defendants often that the mere fact that the Plaintiffs do
9 not have something immediately in their possession is not a
10 reason necessarily for saying that it is not within their
11 power or control to get hold of, and that is just a flier
12 for any future argument.
13
14 So, in essence, my Lord, I have gone through the letter of
15 3rd February. There is nothing more save for those extra
16 things about cheque books etc. that I want to add in
17 relation to the application for discovery.
18
19 If I can now go on to, unless your Lordship has any
20 point----
21
22 MR. JUSTICE BELL: No, thank you.
23
24 MR. ATKINSON: -- to the second application which, I hope, will
25 be a little briefer, having said I will be short.
26
27 MR. JUSTICE BELL: That is No. 5, is it?
28
29 MR. ATKINSON: I think, yes, I have not got the agenda with me.
30
31 MR. JUSTICE BELL: Further and better particulars of the reply.
32
33 MR. ATKINSON: That is right, my Lord. There was a request for
34 further and better particulars of the reply to the defence
35 to counterclaim. Now, the reply to the defence to
36 counterclaim will be, I hope, in your Lordship's
37 counterclaim file. It is in the one Mrs. Brinley-Codd
38 handed up apparently.
39
40 MR. JUSTICE BELL: Yes, tab 5.
41
42 MR. ATKINSON: It comes towards the end. It is dated 6th March
43 1995. If your Lordship just reads that, it does not
44 actually take very long to read.
45
46 MR. JUSTICE BELL: Yes.
47
48 MR. ATKINSON: One can see there, the relevance of this reply
49 is, presumably, because we have a defence of qualified
50 privilege. It has been put in to counter what might be
51 thought to be a firm plea of qualified privilege, so it is
52 important for the Defendants to have this plea on the
53 record.
54
55 However, when one actually looks at it, and bearing in mind
56 the requirement that if you are pleading a malice against
57 somebody -- and I will refer your Lordship to the White
58 Book on this in a moment -- but bearing in mind that one
59 does have to give full particulars on which one bases the
60 contention that someone has acted with actual malice, it
