Day 313 - 13 Dec 96 - Page 58


     
     1
     2        There is one other thing.  I do not desire to say anything
     3        more about the article 10 point because, in our respect
     4        submission, it is not in play in this case, never could be
     5        so long as the libels were libels on the Plaintiffs in the
     6        way of their business and trade, which they plainly are.
     7
     8        There is only one other thing I ought to say.
     9
    10   MR. JUSTICE BELL: There is another limb of -- I need not trouble
    11        you further about reversal of the burden of proof because
    12        that seems to me that that goes whichever way the point you
    13        have just argued goes.
    14
    15   MR. RAMPTON:  Yes, it does, though I would say this, that if
    16        I had the burden of disproving justification or proving
    17        falsity I would submit that I have fully discharged it, but
    18        I do not have to make that submission under English law.
    19
    20   MR. JUSTICE BELL:  No.  I need not trouble you on the other
    21        point which the Defendants argued, about there being a
    22        qualified privilege to make the kind of statements made in
    23        the leaflets so that the Plaintiffs must prove malice, and
    24        if some parts of US law were the law of this country then
    25        that might be so, but I am concerned with English law.
    26
    27   MR. RAMPTON:  That would be a New York Times v Sullivan type
    28        defence which has been adopted in some form by the High
    29        Court in Australia now for some cases, and I think also in
    30        India, but it is not part of the law of England, and that
    31        is the beginning and end of it.
    32
    33   MR. JUSTICE BELL: Then the final essential point, it seems to
    34        me, that Ms. Steel and Mr. Morris were making in suggesting
    35        there should be a stay and I should not give judgment after
    36        all in this case, was that the action ought to be stayed as
    37        an abuse of process, and they made various points about the
    38        situation they were in vis-a-vis their clients.
    39
    40        What, at the moment, it seems to me, is that the question
    41        at the end of the day is whether the circumstances are such
    42        that justice cannot be done in the particular case.  For
    43        instance, the Hamilton case was rather like that because it
    44        was, if my recollection of it in its early days is correct,
    45        it was said that justice cannot be done in this case
    46        because we cannot obtain certain information because of the
    47        Bill of Rights.
    48
    49   MR. RAMPTON:  That is right.  If there is some-----
    50
    51   MR. JUSTICE BELL: Rather, one cannot adduce evidence.
    52
    53   MR. RAMPTON:  That is right.  If the Defendant is under such a
    54        disability that he is unable to defend himself, or vice
    55        versa the Plaintiff cannot advance certain parts of his
    56        case in order to defeat the defence, then the court may
    57        well say, 'We cannot deal with this, this is not fair'.
    58
    59   MR. JUSTICE BELL: Does it amount to this.  Even if one assumed,
    60        even if -- and I stress that 'one assumed' -- one assumed

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