Day 304 - 22 Nov 96 - Page 20


     
     1        proven, about it being heard at the end, which may have
     2        been an invitation to the Plaintiffs to move publication
     3        further up the agenda.  I think what is important is that
     4        we feel that you should not be under any pressure not to
     5        find for us on publication because it does seem the whole
     6        trial has been absurd if we win on publication, and that
     7        may reflect on how things have gone generally because we do
     8        not consider it to be any reflection on you but, rather,
     9        the way things fell into place, largely because of the
    10        Plaintiffs', you know, programme for the evidence, and at
    11        that time it was going to be a twelve week trial.  So,
    12        I think that was something we felt we wanted to say.
    13
    14   MR. JUSTICE BELL:   Yes, very well.
    15
    16   MR. MORRIS:   I mean, obviously, you have some difficult
    17        decisions to make in this case and, hopefully, they will be
    18        the right ones.  Hopefully, they will be in our favour.
    19
    20   MR. JUSTICE BELL:   Yes.  I do not see myself succumbing to the
    21        pressure.  It is a perfectly valid point for you to make.
    22
    23   MR. MORRIS:   Right.  I was trying to put it as diplomatically
    24        as I could.  The other thing I wanted to say is about the
    25        burden of proof, and we have heard that the burden of
    26        proof, balance of probabilities -- sorry, the burden and
    27        the balance -- the burden is the Plaintiffs' in this part
    28        of the case and the balance of probabilities, because of
    29        the seriousness of the consequences of this decision, the
    30        Plaintiffs' burden of proof must be high to show that their
    31        case has been proven on publication.  I mean, it is
    32        virtually akin to a criminal act where-----
    33
    34   MR JUSTICE BELL:  I do not accept that, I am afraid.
    35
    36   MR. MORRIS:   I mean, in terms of the consequences it is.
    37
    38   MR. JUSTICE BELL:  Anyway, that is not what the authorities say
    39        to me.  There is lot of misunderstanding about this
    40        variable standard of proof.  If one reads the authorities,
    41        all they really say is the more serious the behaviour is
    42        alleged to be, and therefore the more unlikely it would be
    43        in the normal way of things that it would be performed, the
    44        stronger must be the evidence to outweigh that
    45        unlikelihood.  That is all the authorities say.  It was a
    46        very good example the case where what was at stake was
    47        whether a woman had feloniously killed her husband where
    48        they were both found dead of coal gas poisoning.  It really
    49        was no more than common sense, as someone said in a later
    50        case.  It is very unusual, happily, and it is very unlikely 
    51        that a woman will kill her husband in that way.  The 
    52        inherent likelihood is that she will not. 
    53
    54        So, a greater degree of proof is, in ordinary common sense,
    55        required before a judge will say, "Well, I find that she
    56        did kill her husband in that way".  But there is no doubt
    57        that, subject to any case you put before me which is not on
    58        Mr. Rampton's list of cases, in libel the standard of proof
    59        is the civil standard, not the criminal standard.
    60

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