Day 307 - 27 Nov 96 - Page 54


     
     1        because they have to be defamatory before you get into
     2        there; but what you are saying is, it is a gratuitous
     3        insult rather than some kind of reasoned response.
     4
     5        In so far as that might be so, the relevance of that at the
     6        moment seems to me to be directed more at the question of
     7        express malice than anything else.  If you are attacked in
     8        certain material and you say that the material is lies, at
     9        the moment it seems to me that that is relevant to the
    10        attacking material.  I know you say the attacking material
    11        is not there, but I have to suppose it is for the purpose
    12        of getting this far along the chain of argument.  So, to
    13        say that the attacking material is lies seems to me to be
    14        relevant, and it seems to me that is what you are really on
    15        at the moment but I am saying this to you in case I have
    16        missed a trick, as it were, but what you are saying now is,
    17        in support of your argument, you have come along the
    18        argument so far as being attacked, there has been a counter
    19        attack, what was said being relevant, nevertheless it is
    20        express malice.
    21
    22   MR. MORRIS:   Yes, I mean -----
    23
    24   MR. JUSTICE BELL:   What you are saying at the moment is the
    25        gratuity of the insult of lies indicates express malice.
    26
    27   MS. STEEL:   Can I say that you said that it had to say that it
    28        was lies, but it does not have to say it is lies, because
    29        it could say it is not true.  Therefore, there is not an
    30        implication in there that people are deliberately putting
    31        out information they know to be false.
    32
    33   MR. JUSTICE BELL:  No, no.  What I am saying, to say it is lies
    34        is relevant to it.  To say it is lies is no doubt
    35        defamatory, that reduces your reputation in the eyes of
    36        ordinary people, but you have got to have something which
    37        is defamatory or we are not here at all on the
    38        counterclaim.
    39
    40   MR. MORRIS:   I understand that, but the point is, is it an
    41        appropriate response?  If someone is issuing something
    42        which is not true, an appropriate response which would be
    43        covered by privileged self-defence, maybe in certain
    44        circumstances, would be to say, "No, that is not true",
    45        what people are saying the reality is this ---
    46
    47   MR. JUSTICE BELL:   So be it.
    48
    49   MR. MORRIS:  -- but to say that those people are lying  -----
    50 
    51   MR. JUSTICE BELL:  All this goes to express malice, does it 
    52        not? 
    53
    54   MR. MORRIS:   We are saying that the privileged self-defence
    55        argument should not apply to an inappropriate response,
    56        where the response is more out of proportion to the
    57        criticism.  Now, what it is saying is that the fact sheet
    58        makes these criticisms -----
    59
    60   MR. JUSTICE BELL:   I thought that is what it said.  It cannot

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