Day 177 - 26 Oct 95 - Page 47


     
     1        or its financial stability.
     2
     3        Then the last two cases are those two old cases from the
     4        middle of the last century about, first of all, tallow
     5        syphons in and -- the first is Evans v. Harlow, and that is
     6        at tab 10.  Your Lordship has read this case and the words
     7        complained of.  I believe your Lordship shares my
     8        surprise  ---
     9
    10   MR. JUSTICE BELL: Yes.
    11
    12   MR. RAMPTON:  -- that it was not a libel.  At all events, I do
    13        not believe that I need to read it.  But, plainly, it would
    14        not be a libel on a tradesman to say that there were minor
    15        defects in his goods which he was not aware of, unless that
    16        imputed incompetence or negligence, which it would be
    17        unlikely to do.  Beyond that, my Lord, I bound to say that
    18        I share the doubts of the learned editor of Gatley whether
    19        one can lay down a hard and fast rule that knowledge of the
    20        defect must be imputed before you can have a libel.
    21
    22        One does notice in the next case, tab 11,
    23        Broomfield v. Greig, that in the judgment of the Lord
    24        President on page 465, in the first paragraph of the
    25        judgment -- I have passed on now to tab 11.
    26
    27   MR. MORRIS:  The bit that you quoted before or summarised in the
    28        last one, is there an actual section where it says that?
    29
    30   MR. RAMPTON:  Says what?
    31
    32   MR. MORRIS:  Whatever you said about not libellous to say minor
    33        defects, and knowledge of defects is necessary for libel,
    34        and things like that.  Is there a specific paragraph which
    35        sums up?  I look at it as a blank.
    36
    37   MR. RAMPTON:  I am sorry, I am not going to read all that.  The
    38        relevant passages, my Lord, are at the bottom of 1387, the
    39        last line, the last three words, going through to the end
    40        of the first paragraph on 1388, the last sentence of the
    41        judgment of Patteson J. on page 1388, the sentence
    42        beginning: "This is not in effect a caution against the
    43        Plaintiff".
    44
    45   MR. MORRIS:  Where does it say that?
    46
    47   MR. JUSTICE BELL: It is towards the end of that long paragraph.
    48
    49   MR. MORRIS:  Yes.
    50 
    51   MR. RAMPTON: "This is not in effect a caution against the 
    52        Plaintiff as a tradesman in the habit of selling goods 
    53        which he knows to be bad", and so on, down to the end of
    54        that paragraph; and then in the judgment of Whiteman J.,
    55        where he says: "Those who have really adopted",
    56        etcetera, "there it is not alleged that the Plaintiff knew
    57        the syphons to be such as described.  If they had the
    58        defects imputed he may have been unconscious of it."  That
    59        distinguishes this case from the other one.
    60

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