Day 283 - 21 Oct 96 - Page 39


     
     1
     2   MR. MORRIS:   What makes me nervous about this whole case, and
     3        about that last matter, is, you know, there is a lot of
     4        fancy legal footwork that goes on in these kind of cases
     5        for the benefit of the people doing that footwork and we
     6        cannot really do that kind of footwork, so it always
     7        worries me we may lose on technicalities.
     8
     9   MR JUSTICE BELL:  I don't think it is fancy footwork.  For
    10        better or worse, the law of defamation has grown up in its
    11        own special way over particularly, it seems to me, the last
    12        150 years, and whereas in ordinary negligence claims if you
    13        don't know what the law is you can say what you think is
    14        sensible and there is a ninety percent chance of you being
    15        right.  I am not sure the percentages aren't the reverse of
    16        that in the law of defamation, but there we are.  I have
    17        mentioned it at this stage so that you can get a hold of
    18        it.
    19
    20   MR. MORRIS:   Right.
    21
    22   MR. JUSTICE BELL:   I will say it very shortly and you can make
    23        a note, or Miss Steel can, if you are on your feet.  It may
    24        be important to get straight in your own minds and address
    25        me on which statements you accept are statements of fact to
    26        which the essential defence is one of justification.  That
    27        is, the statements which are true.  If the statements are
    28        statements of fact which contain a general charge, then
    29        they can be justified by facts which are not referred to in
    30        the leaflet.  If a statement is a comment it can be
    31        defended as fair comment but only by reference to facts
    32        which are stated in the leaflet and sufficiently referred
    33        to by the leaflet.  As an example --  and this is all
    34        totally provisional, because when I have heard what you say
    35        to me, with or without the assistance of someone behind the
    36        scenes, and when I have heard what Mr. Rampton says to me
    37        I may change my mind --  it may be of practical importance
    38        in this sense, that you might want to say that a charge
    39        that McDonald's treat their employees badly in terms of
    40        conditions of employment, you may want to say that is
    41        comment because it may be easier to defend comment as fair
    42        comment than it is to justify it as a statement of fact,
    43        but when you choose to treat it as comment you may limit
    44        the matters upon which you can rely to matters which are
    45        stated in the leaflet, or sufficiently referred to in the
    46        leaflet, whereas if you want to justify it as a general
    47        charge of fact, you can refer to other matters.
    48
    49   MR. MORRIS:   I understand, that is what I meant by fancy
    50        footwork.  I am sure that in every case both sides ----- 
    51 
    52   MR. JUSTICE BELL:   I think fancy footwork is a rather 
    53        unfortunate phrase.  It is just the law as, at the moment,
    54        I understand it to be.  It might be appealing to treat bad
    55        conditions of employment as a comment but if that is your
    56        preference you might want to use lack of safety to defend
    57        it.  It may be more difficult to justify it as a statement
    58        of fact.  You will be able to rely on things like safety;
    59        do you see?
    60

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