Day 311 - 06 Dec 96 - Page 40
1 MR. JUSTICE BELL: -- that is not enough for malice, is it?
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3 MR. RAMPTON: No. You have to decide where the balance lies.
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5 MR. JUSTICE BELL: It is not just balance. I have to
6 decide -----
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8 MR. RAMPTON: Between those two considerations, you have to
9 decide which is the stronger.
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11 MR. JUSTICE BELL: Is that enough? So long as one is a motive
12 of some substance, even though the other is stronger, that
13 is not enough for malice, is it?
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15 MR. RAMPTON: Oh, yes, it is, because then the other one, the
16 bad one, is the dominant one.
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18 MR. JUSTICE BELL: Well, this is really why I asked. You just
19 say, sole or dominant is enough.
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21 MR. RAMPTON: Yes. That is precisely what Lord Diplock says in
22 Horrocks v. Lowe.
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24 MR. JUSTICE BELL: Yes.
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26 MR. RAMPTON: I do not say it has to be the sole motive.
27 I never said that it was. But I do say that it is the
28 dominant one, on all the evidence.
29
30 My Lord, I do not know if there are any particular points
31 in malice. There are, as I said, just a couple of
32 important points I want to add to it in due course, when it
33 is convenient.
34
35 MR. JUSTICE BELL: It is quite clear that the test -- I mean,
36 obviously its application may be very different, because of
37 the different circumstances -- but the test of malice is
38 the same for rebutting a defence of qualified privilege and
39 for getting rid of fair comment, is it not?
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41 MR. RAMPTON: Yes; it must be the same. There is not any direct
42 evidence, following Horrocks v. Lowe, about how you apply
43 malice in fair comment, but it must be this, that the
44 defendant's desire to express his honest opinion on a
45 matter of public interest was not the dominant motive for
46 the publication, but that something else, ulterior and
47 improper, was.
48
49 My Lord, Mr. Atkinson says I should ask your Lordship in
50 due course -- not now -- to look at paragraph 17.10.
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52 MR. JUSTICE BELL: Yes, I have read that. Thank you very much.
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54 MR. RAMPTON: And 17.18. What one gets from Horrocks v. Lowe is
55 this -- if I can just sum it up -- if it be shown that the
56 libel contains injurious statements about the plaintiff,
57 except in the most trivial sense, which the defendant knew
58 were false or did not believe were true as indifference to
59 their truth, then it will be inferred, because of its very
60 inclusion of those statements, that his dominant motive was
