Day 253 - 21 May 96 - Page 35


     
     1
     2   MS. STEEL:   I would need a bit of extra time to sort them out.
     3        There are a couple other things to mention which do not
     4        have to be dealt with right now.  The first one is Jane
     5        Brophy.  Because she has had to take a lot of time off work
     6        looking after her children she would prefer to be
     7        subpoenaed.  If you remember, you were suggesting that we
     8        should subpoena them.  I wanted to ask about that.  The
     9        other thing that I wanted to raise was just that
    10        Mr. Rampton said this thing about he cannot attribute
    11        malice to a company.  We have not had time to get legal
    12        advice on that and to find all the relevant law on it.  But
    13        if that is an objection that is going to continue being
    14        taken, then it may be the simplest thing if we add four
    15        names to our pleadings.
    16
    17   MR. RAMPTON:  Can I try and explain this?
    18
    19   MS. STEEL:   And just make that amendment, because it may save
    20        time.
    21
    22   MR. JUSTICE BELL:  Let us hear what Mr. Rampton has to say.
    23
    24   MR. RAMPTON:  It is not a question of pleading at all, really,
    25        although pleadings usually follow the principle.  The
    26        principle is, as your Lordship knows, that a company cannot
    27        have a subjective intention of any kind, it has no state of
    28        mind except through its servants and agents.  Sometimes it
    29        is directing mind if it is the board of directors and it is
    30        an appropriate case, but as a legal entity it has no mind
    31        of its own.  It therefore cannot be of itself, it cannot
    32        have a malicious intention, it cannot be held to be
    33        malicious.  That means that the party who alleges malice
    34        against a company must prove -- and it can by inference of
    35        course -- on the balance of probabilities to the
    36        satisfaction of the court that one or more of the servants
    37        or agents of the company who were responsible for the
    38        publication complained of had a malicious state of mind.
    39
    40        In the normal way, taking a newspaper case, if the reporter
    41        is malicious then the publishing company will be
    42        vicariously liable for the malice; not, however, the editor
    43        because he is not the principal or master of the
    44        journalist.  In the normal case, therefore, in a pleading
    45        the Plaintiffs' counsel in the reply will be careful to
    46        identify that individual, or those individuals, on behalf
    47        of the newspaper company who he says possessed the
    48        malicious state of mind.
    49
    50        So far as the Defendants' pleading is concerned, really 
    51        I am not much worried one way or the other.  What I said 
    52        was intended to alert them to this, and I did it, of 
    53        course, through your Lordship, which I probably did not
    54        need to do but I did:  they need to identify to your
    55        Lordship's satisfaction, and, of course, I need to have
    56        notice of it, which is what the pleading is for, who they
    57        say were the persons concerned with the distribution, which
    58        is the subject of the counterclaim, who are malicious.
    59
    60   MR. JUSTICE BELL:  Is it sufficient for your purposes if they do

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