Day 261 - 12 Jun 96 - Page 63


     
     1        that evening in that place."  If you had instructed
     2        him: "Well, I really just do not know whether it was
     3        there", he might well say, "Are you sure that the leaflet
     4        in question was there", and he might have asked questions
     5        of the kind you have asked as to what the indicators are.
     6        If your instructions to him were:  "Well, I really cannot
     7        remember, but the state of things was such that it probably
     8        was there or may well have been", he probably would not
     9        have asked a question at all about it, or might well not
    10        have done.
    11
    12        There is a different when you are representing yourselves,
    13        and there is a difficulty, I appreciate, when you are not
    14        legally trained, even though you now have considerable
    15        experience of cross-examination.  I hope I make due
    16        allowance for that.  But if you are going to suggest at the
    17        end of the day that the position positively is that the
    18        leaflet was not there, you should put it to the witness,
    19        because that is what counsel would do.
    20
    21   MS. STEEL:   If we were represented, would it not be the case
    22        that our representative might have applied for this
    23        particular pleading to be struck out on the grounds that
    24        the Plaintiffs had not actually bought any proper evidence
    25        that it was actually available on the day?
    26
    27   MR. JUSTICE BELL:  No. He would leave it all there and he would
    28        make such comment -- he or she would make such comment --
    29        as they thought fit at the end of the day; because it is
    30        not just an allegation which stands on its own.  It is not
    31        a matter where one would just necessarily, say, look only
    32        at what the direct evidence is of witnesses like
    33        Mr. Pocklington who were there on the occasion in
    34        question.  He would appreciate that the judge would look at
    35        the whole picture of such general course of action as he
    36        could take from all the evidence and look at positive
    37        evidence given by a witness, if any, as to whether the
    38        leaflet was there, look at indicators that that is
    39        unreliable, but look at other features in the evidence
    40        which might make it more likely than not that it was there
    41        and, at the end of the day, come to a conclusion on balance
    42        of probabilities.
    43
    44        So, all I invite you to do, if you are going to suggest at
    45        the end of the day that it was not there, which it seems,
    46        in saying there is no reliable evidence -- I mean, I am not
    47        suggesting you are sitting on the fence on purpose; I just
    48        do not know -- but saying that there is no reliable
    49        evidence that it was there seems to me tantamount to having
    50        a case that it was not there; and if that is the position, 
    51        you had better put it to Mr. Pocklington, and then we know 
    52        that is your case. 
    53
    54   MS. STEEL:   It is just that my understanding was that whilst it
    55        was up to a defendant to prove justification, the one thing
    56        it was up to a plaintiff to do in a libel case was to prove
    57        publication.  It just seems a very strange way to go about
    58        doing it, to lose all the originals, to not be able to have
    59        them attached to the proper statement, and to not be able
    60        to provide any proper proof.

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