Day 057 - 29 Nov 94 - Page 53
1 recall any instances right now, other than early in the
2 case when we were arguing about statistics.
3
4 MR. JUSTICE BELL: What I am suggesting to you, your point about
5 you not being able to prove it was true for lack of a
6 witness or something, is surely subsumed in the question of
7 belief, or that is what you are going to argue. If it
8 turns out that there is not evidence that something is
9 true, you are going to say, "Well, OK, we have not been
10 able to prove it was true, but we believed it was true
11 because we accepted what appeared in 'Jungle Burger'" --
12 may be you will establish statements in "Jungle Burger" but
13 let us take it as an example. Suppose some of the things
14 in "Jungle Burger" were not supported by admissible
15 evidence, so I thought that I had to find that that
16 statement had not been proved, you would be saying to me:
17 "Well, nevertheless I believed it was true." If you say
18 something which you believed to be true, that is, you would
19 say, not a lie.
20
21 The whole question of whether you have been able to prove
22 it or not is lost, is it not, in the consideration of what
23 you believed to be true? You may be in a strong position
24 on that, I do not know.
25
26 MS. STEEL: It is not as simple as that because the Plaintiffs
27 are asserting that these are lies. Therefore, they have to
28 prove that these are lies or prove that we have been just
29 totally and utterly ridiculously reckless or whatever. If
30 they are pleading here that everything that is in our
31 pleadings is not true, then they should have to prove
32 that. This comes up because Mr. Rampton has said -----
33
34 MR. JUSTICE BELL: You have your argument about proof or not,
35 you know at the moment what my reaction to that is, but
36 what has that to do with the actual pleading of the Defence
37 to Counterclaim? You do not have evidence in a pleading.
38
39 MS. STEEL: The only reason I brought that up was because I was
40 not sure what they were saying there. I do not think it is
41 that clear whether they are meaning -- if they want to say
42 that that means the entire pleadings, then that is OK, that
43 is the end of that particular question at the moment.
44
45 MR. JUSTICE BELL: I will hear Mr. Atkinson on that. I had
46 taken that to be an assurance to you that they were not
47 going to go outside those matters which are otherwise
48 issues in the case.
49
50 MS. STEEL: Yes, but, as I say, I am not sure whether they mean
51 issues as in the issues set out in the Statement of Claim,
52 or whether they mean the issues set out in the entire
53 defence pleadings. It is quite a simple matter of
54 clarification really. There is not any complex there; they
55 can give a two-word answer to that.
56
57 MS. STEEL: The other thing I wanted to bring up which is not
58 strictly speaking about Further and Better Particulars but
59 it is something we are very concerned about, which is that
60 at the top of page 11 you will see the 4th line down says:
