Day 311 - 06 Dec 96 - Page 47


     
     1        the line in favour of the Plaintiffs on this aspect, but
     2        then the last step was to ask does it make any difference,
     3        because I do not think, if they had written, it would have
     4        made any difference to Mr. Morris or Ms. Steel.  There are
     5        things I have to consider about that:  whether, in fact,
     6        when a letter did come and the proceedings, the leaflet did
     7        stop going the rounds, if they were responsible for it.
     8        But suppose I went all the way along the line with them,
     9        but then reached that step at the end.  What would be the
    10        effect of that?
    11
    12   MR. RAMPTON:  What step at the end, my Lord?  I am sorry.
    13
    14   MR. JUSTICE BELL:  That this is all untrue, McDonald's did not
    15        believe it was true, but, even if it had been true, it
    16        would not have made one jot of difference; the Defendants
    17        would have plugged on regardless, anyway.
    18
    19   MR. RAMPTON:  I mean, it has no impact, and when one -----
    20
    21   MR. JUSTICE BELL:  Does that mean that you get a penny's damages
    22        for that -----
    23
    24   MR. RAMPTON:  Well, I am not the plaintiff in this part of the
    25        case.
    26
    27   MR. JUSTICE BELL:  No.  They are.
    28
    29   MR. RAMPTON:  No, no, it does not.  It means that McDonald's
    30        dominant motive for the publication of this responsive
    31        material was not malicious.  There may have been something
    32        in -----
    33
    34   MR. JUSTICE BELL:  It may be a totally academic question.
    35
    36   MR. RAMPTON:  It is, because what it means is that there may
    37        have been something in their responsive material which, if
    38        they thought about it, they would have realised they knew
    39        was not 100 percent accurate.  But I have broken into
    40        myself, because of Mrs. Brinley-Codd's intervention.  I do
    41        not even go that far.  But even suppose that were right,
    42        all it would lead to is a conclusion that they were maybe a
    43        bit careless, maybe they were a bit cross.
    44
    45   MR. JUSTICE BELL:  I am suggesting we go further than that.
    46        I appreciate that is your argument.  But suppose it is
    47        defamatory, it is not justified, it is not made in response
    48        to an attack, or, more likely, it is made in response to an
    49        attack, but I think there was no basis upon which
    50        McDonald's could have possibly believed that they had 
    51        written these letters.  I am grateful for the reference 
    52        which Mrs. Brinley-Codd has prompted.  But suppose that 
    53        were so, but I go on to say even though there was no basis
    54        upon which McDonald's could actually think that, on the
    55        information which was available to them at the time, having
    56        heard the Defendants give evidence and having seen what has
    57        happened since this defamatory statement was put out in
    58        response to attack, I think that the Defendants would not
    59        have behaved any differently, in fact.  Then, is that a
    60        situation where they succeed on their counterclaim, but

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