Day 310 - 04 Dec 96 - Page 30
1 occasions; it is just that I have not actually raised it.
2 Everyone has said you must prove publication for an action
3 in defamation to succeed. That is not strictly so, because
4 you could fail to prove publication in the past but prove
5 that there was, let me say, a high probability of
6 publication in the future and, therefore, you are entitled
7 to have an injunction in certain circumstances.
8
9 As I understand it, Mr. Rampton, that was one of the
10 reasons why you were against -- amongst others -- having
11 the issue of actual publication tried as a separate or
12 preliminary issue, though I may have misunderstood you on
13 that. I think it was when you said that that an injunction
14 against what might happen as opposed to a remedy for what
15 has happened came into my mind.
16
17 MR. RAMPTON: That is right, my Lord. It is dealt with
18 on -----
19
20 MR. JUSTICE BELL: That was about two years ago.
21
22 MR. RAMPTON: Your Lordship is absolutely right. In that
23 hypothetical situation, that we have failed to prove
24 publication against one or both of the Defendants, we would
25 still say that there was evidence -- whether your Lordship
26 thought it right or not is another question -- we would
27 still say that there was evidence that they intended to
28 republish or to publish, and, in those circumstances,
29 nevertheless, assuming that the allegations are false, we
30 were entitled to a quia timet injunction. That is dealt
31 with in paragraph 5 on pages 9 and 10 of our submission.
32
33 MR. JUSTICE BELL: It is on the next page to the matter I have
34 just asked you about. Oh, no.
35
36 MR. RAMPTON: It is 9 and 10.
37
38 MR. JUSTICE BELL: 9 and 10, yes.
39
40 MR. RAMPTON: Paragraph 5, 9 and 10. That is, as your Lordship
41 rightly points out, one of the reasons for not asking
42 your Lordship to take publication first, because it would
43 not have been determinative of the issues in the case.
44
45 MR. JUSTICE BELL: That is what you understood you to say.
46
47 MR. RAMPTON: It would not, because if I want a quia timet
48 injunction, in the ordinary way of things, when no
49 publication has taken place, if I am to get it I have to
50 satisfy the court that the words are false.
51
52 MR. JUSTICE BELL: Yes. You have to prove all the other things
53 you have set out to prove.
54
55 MR. RAMPTON: Exactly. So it would have achieved nothing.
56
57 MR. JUSTICE BELL: I am not promoting this because I am offering
58 any view one way or the other on the issue of actual
59 publication. Is that something you are going to say more
60 about when we come to publication?
