Day 280 - 17 Jul 96 - Page 19


     
     1             The next point is that there would be a real
     2        likelihood of the third parties saying, "Well, this is no
     3        good.  We have got to be allowed to give further evidence
     4        on our own behalf and we may well wish to call evidence
     5        from other people who support our case.  We may wish to ask
     6        your Lordship to recall at least Ms. Steel into the box for
     7        further cross-examination by the third party's legal
     8        representative in order to damage any idea that the spies,
     9        the private investigators" -- I am using the terminology of
    10        the Defendants -- "the private investigators were
    11        consenting, and McDonald's were consenting through them, to
    12        publication of the words complained of."
    13
    14             So, one has a situation -- I will forget pleadings,
    15        pleadings might be dispensed with but your Lordship may say
    16        that the third parties have a right to put their case to
    17        plead.  I do not know.  It is not for me to speculate on
    18        what directions will be given.  One has evidence, one has
    19        cross-examination, one has legal advice and obviously then
    20        one would have submissions by them.  All this takes a lot
    21        of time.
    22
    23             And I would just make one point incidentally, though I
    24        do not represent the third parties.  It is said they are
    25        not prejudiced in anyway by this application having not
    26        been made earlier.  Well, they are, my Lord, because had it
    27        been made when it should have been made -- and this is one
    28        of my main points, it should have been made at the very
    29        latest in March of this year.  In March of this year, the
    30        Defendants sent to our side their draft amended defence.
    31        It must have been at that stage and surely, surely,
    32        sometime before that, given that for obvious reasons the
    33        Defendants have not got round to doing things until later
    34        than they probably would have wished to, it would have been
    35        known that this was going to be their case and that, my
    36        Lord, was before the publication issue was really gone into
    37        and if it had been done at that stage argument would have
    38        been had, the third parties could have come here, they
    39        might well have been represented at the trial, they might
    40        well have then had the opportunity before they actually
    41        gave evidence to get legal advice in relation to their own
    42        position, though, of course, I am not saying they did not
    43        tell the truth any differently from what they did when they
    44        actually give evidence, but they might well have said more
    45        or said different things in the witness box in and attempt
    46        to protect their position.
    47
    48             So, in other words, there has been prejudice to the
    49        third parties in that respect.  I make one further point on
    50        that, and I have discussed this with my learned friend.  I
    51        am not quite sure whether he is still relying on it as a
    52        point, but he refers to section 1(5) of the Civil Liability
    53        Contribution Act, and saying that were there to be
    54        contribution proceedings the third parties would be in a
    55        worse position than if there were third party proceedings
    56        because they would in some way be bound by things said in
    57        any judgment in this action.  I have looked at it and I
    58        must say it took me about ten minutes to understand the
    59        particular section, but, having looked at it, it does not
    60        actually, in my submission, say what my learned friend says

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