Day 284 - 22 Oct 96 - Page 06


     
     1        have to say this part of the meaning is pure statement of
     2        fact and that part of the meaning is comment.  You first of
     3        all have to say what the meaning is.  Then you can deal
     4        with what you say the real facts are, both ones mentioned
     5        in the leaflet and other ones which you would seek to rely
     6        on, and then later on in your submissions you can go back
     7        and say "We would suggest this is comment and we can rely
     8        on these matters to defend it", or "We would say it is
     9        statement of fact and we say we can rely on these matters
    10        to justify it".
    11
    12        Do you see what I mean?
    13
    14   MR. MORRIS:   One question; it is my understanding, and I might
    15        be right or wrong, that other matters that would go to the
    16        reputation of McDonald's in any event, which I have been
    17        advised have to be seen in the round, would be relevant in
    18        any case.  Even if something was deemed to be a comment
    19        rather than a fact, and therefore matters such as safety in
    20        the workplace would not necessarily, if Mr. Rampton is
    21        right, be relevant to poor conditions, if it was deemed to
    22        be comment, but the safety conditions would still be
    23        relevant in terms of general reputation because it would
    24        not be defamatory of the plaintiffs.
    25
    26   MR JUSTICE BELL:  We will hear what Mr. Rampton says in due
    27        course.  The point is this; you cannot just call evidence
    28        about bad practices generally in order to say that the
    29        plaintiff has a reputation they ought not to have or that
    30        they have no reputation at all.  What you can do, if a
    31        general charge is being made, is call matters of fact which
    32        might justify that general charge even though they are not
    33        stated in the leaflet.  But the general charge has to be in
    34        the leaflet, be it, for instance, poor conditions of
    35        employment.  Even though health and safety is not mentioned
    36        in the leaflet, you can say work practices are not safe.
    37
    38        What you cannot do is just call evidence to blacken the
    39        character of the plaintiff, which is not a matter of fact
    40        which could possibly be justification of a general charge
    41        in the leaflet.  If you call evidence of a matter of fact
    42        which you would say justifies a general charge in the
    43        leaflet but it fails to justify that general charge, then
    44        it, having come in, as I understand it, I can take it into
    45        account in relation to what damages should be, and so on.
    46        But that is a different consideration.
    47
    48   MR. MORRIS:   So the general charge such as poor conditions, it
    49        would not matter whether it was a fact or a comment, it
    50        would still be that safety would be relevant to that.  It 
    51        is a general charge under which umbrella safety would come 
    52        under. 
    53
    54   MR. JUSTICE BELL:   Well, I do not really want to add to what I
    55        said yesterday; otherwise I will put it in a different way
    56        and it will be confusing.  Can I give you an example away
    57        from this case?  It is based on my recollection of one of
    58        the authorities, though my recollection may not be
    59        accurate.
    60

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