Day 283 - 21 Oct 96 - Page 39
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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.
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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.
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20 MR. MORRIS: Right.
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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.
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49 MR. MORRIS: I understand, that is what I meant by fancy
50 footwork. I am sure that in every case both sides -----
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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?
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