Day 309 - 03 Dec 96 - Page 67
1
2 MR. RAMPTON: It may be. It may have been a deliberate
3 decision. One does not know.
4
5 MR. JUSTICE BELL: The alternative to that is that they decided
6 what really hurt was saying that this leaflet was lies, not
7 that McDonald's PR or Communications Department, not what
8 McDonald's Communications Department said the leaflet said
9 was lies.
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11 MR. RAMPTON: That is right. One also notices that there is no
12 way in which that missing page and the bit can be squeezed
13 into the counterclaim, because nowadays, if you want to
14 rely on context, you have to plead it. You have to say,
15 "I rely on context". It is Tebbitt v. Bookbinder in the
16 Court of Appeal. I am afraid I cannot remember the date,
17 which is why (as your Lordship will have noticed) there are
18 parts of the leaflet, fact sheet so-called, in this case
19 which I, on reflection, would have quite liked to have
20 relied upon as context but have not been able to do so
21 because there is no plea in my Statement of Claim that
22 I want to rely on the context, other than the words
23 complained of.
24
25 MR. JUSTICE BELL: I have declared this in open court because
26 your submissions on counterclaim have yet to come and
27 I have reason to believe Ms. Steel and Mr. Morris may ask
28 me if they can reply to you on counterclaim.
29
30 MR. RAMPTON: The point your Lordship has just taken is one that
31 has escaped me completely. I had not spotted it at all.
32 But the answer to it must be, off the top of my head -- if
33 I change my mind perhaps I can come back to it tomorrow --
34 that for that reason (amongst others) CFCs have got nothing
35 whatever to do with this case.
36
37 MR. JUSTICE BELL: Query in any event, and this is really my
38 last query on whether damage to the ozone layer and CFCs
39 and HCFCs do have a part in this case by reason of the
40 counterclaim only. If I consider at the end of the day
41 that whether damage to the ozone layer or CFCs and HCFCs,
42 whatever the truth about McDonald's responsibility,
43 culpable responsibility, in that area, if I believe that
44 the Defendants believed that they were responsible for it,
45 do I look into the merits of ozone layer or CFCs or HCFCs,
46 or do I say, "Well, I do not have to trouble about that
47 because I accept that the Defendants honestly believed it,
48 so it was defamatory and unjustifiably so to say that part
49 was lies".
50
51 MR. RAMPTON: No, because that part is not part of what they
52 complain about.
53
54 MR. JUSTICE BELL: It is not there?
55
56 MR. RAMPTON: It cannot have any conceivable relevance. The
57 only way in which it could be relevant, I suspect, is if
58 I said that I rely -- and it may be that I do; I will have
59 to look and see what I have said about malice -- but if
60 I said we rely in support of the plea of malice in the main
