Day 307 - 27 Nov 96 - Page 43
1 reaction? It has to be a response, a reaction, because
2 the waiver of normal law -- presumably, the aim of that is
3 to say, in certain circumstances, people are so overcome
4 with the attack on their business or on their character
5 that they react; they do not think about what they are
6 doing; they react and they may say things which are foolish
7 which they might regret, so there should be some kind of
8 privileged self-defence or a need to immediately respond to
9 something because otherwise, you know, the situation
10 mushrooms out of control and it is too late. Somebody
11 issues damning leaflets about you in your street; you
12 immediately issue counter leaflets to everybody in the
13 street. Otherwise, you know, the whole thing gets out of
14 hand and the whole country thinks you are a child molester,
15 and whatever you do in a case in three years' time when it
16 gets to court to deal with it, it is too late; the cat is
17 out of the bag.
18
19 So, it must be a reaction to a specific attack which you
20 cannot deal with in any other way, we would say.
21
22 MR. JUSTICE BELL: I do not see any justification for that in
23 any of the cases. There may be a number of ways of dealing
24 with it, but this may be one of them.
25
26 MR. MORRIS: We would submit that it has to be an appropriate
27 response to an attack that you cannot deal with in a legal
28 way, in a normal legal way; otherwise, it just becomes an
29 incitement.
30
31 MR. JUSTICE BELL: I may not be far away from you at all if you
32 say it has to be appropriate, but to say that it is
33 inappropriate because one can take legal action completely
34 avoids the point of being this defence at all.
35
36 MR. MORRIS: All I am saying is -----
37
38 MR. JUSTICE BELL: Indeed, you just said so yourself that if
39 someone puts out a leaflet saying you are a child molester,
40 you may not want to wait to take legal action -- indeed,
41 you may not want to take expensive legal action at all --
42 you will want to say loud and clear to everyone who will
43 listen to you, "No, I am not; he has accused me because he
44 was doing it himself". That is the sort of situation where
45 this privilege arises, as I understand it.
46
47 MR. MORRIS: Yes. I would say that if there is a way of
48 dealing with it that is not -- if there is an appropriate
49 way of dealing with it that is effective, then this defence
50 cannot be used by the Plaintiffs in this case. That is
51 what I would argue.
52
53 So, the first question is: Was this a reaction? This
54 clearly, from the evidence that we have heard about the
55 pre-meetings before these leaflets were issued, was a
56 result of a process of a number of months of preparation,
57 carefully crafted, high level -- sorry, carefully crafted
58 words drafted and drafted over with PR professionals
59 involved, and that is very important, PR professionals
60 involved. This was not a reaction. This was a PR campaign
