Day 284 - 22 Oct 96 - Page 42


     
     1        as a comment on the things that you are able to prove about
     2        the judge's behaviour, but if those things were serious
     3        enough, then you could say: "What is more, it is true, as a
     4        matter of fact, that he is not fit to hold office."  More
     5        difficult, if I go to a play and I say that I think it is a
     6        very bad play; very difficult to see how that could ever be
     7        a question of fact.  The relevant paragraph in Duncan &
     8        Neill is 12.11 on page 61.
     9
    10   MR. MORRIS:   That does seem to be logical where some things are
    11        obviously only opinion and some things have the character
    12        of both opinion and fact.
    13
    14   MR. JUSTICE BELL:  Yes.  I am particularly interested by this
    15        when we get to employment.  If one took the "L" out of the
    16        word "play", I am not sure the answer would be the same.
    17
    18   MR. RAMPTON:   My Lord, it will always depend on the context,
    19        the effect which the context would have on the mind of the
    20        reader.  I shall have something to say about that when we
    21        get to employment.
    22
    23   MR JUSTICE BELL:  Yes.  Anyway, at the moment, you reserve your
    24        position?
    25
    26   MR. MORRIS:   Yes.  It seems now we have -- yesterday, I was
    27        fairly convinced I understood what was being expected; then
    28        it all changed with the discussion we had yesterday; and
    29        now it has changed again.  But that is only helpful,
    30        because -----
    31
    32   MR. RAMPTON:   The only thing I should add then ---
    33
    34   MR. MORRIS:   Hopefully, common sense will prevail.
    35
    36   MR. RAMPTON:  -- so that it is absolutely clear to the
    37        Defendants:  as a defendant in a libel action, defamation
    38        action, you cannot keep your options open; you have to
    39        decide whether you are defending a particular set of words
    40        in the defamatory document as a comment or as a statement
    41        of fact.  You cannot have your cake and eat it.  You have
    42        to decide which it is.
    43
    44   MR. MORRIS:   Well, I think it is in the interests of justice
    45        that we have protection from the courts because, you know,
    46        some of these matters are just over our heads.  Basically,
    47        common sense should prevail.  It is obvious that some
    48        things are both comment and fact.
    49
    50   MR JUSTICE BELL:  Yes.  But what is being said is that you have 
    51        to decide which way you are defending it:  are you going to 
    52        defend it by justification as a statement of fact or are 
    53        you going to defend it as comment with a defence of fair
    54        comment?
    55
    56   MR. MORRIS:   I think that in some of the examples which are --
    57        for example, bad conditions -- it is clearly not only a
    58        comment, but it is a statement of fact as well.
    59
    60   MR. JUSTICE BELL:   But you have to decide which way you are

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