Day 310 - 04 Dec 96 - Page 13
1 be comment and not a statement of fact cannot be protected
2 by the plea of fair comment". That is a well-established
3 principle. So, if there is confusion as to whether it is
4 fact or comment ---
5
6 MR. RAMPTON: Yes.
7
8 MR. JUSTICE BELL: -- it must be clear that it is comment
9 rather than fact.
10
11 MR. RAMPTON: That it must be clear. That has been the
12 consistent thread throughout all the authorities, as far as
13 I know, ever since the defence was first developed as a
14 form of privilege.
15
16 MR. JUSTICE BELL: So, a defendant cannot say, "Really, it
17 might be either; it is not clear. As long as I succeed on
18 one or other of the defence, I am in the clear".
19
20 MR. RAMPTON: No, he cannot. I am grateful to your Lordship,
21 because that is what the words of Lord Justice Fletcher in
22 Molton v. Hunz and Star (?), which are quoted in 705 of
23 Gatley, make abundantly clear. It does not mean to say
24 that every comment has to be prefaced by the words
25 "I think" or "my opinion" .
26
27 MR. JUSTICE BELL: No, no. If either bad pay or bad conditions
28 are comment, is there anything which I have heard about
29 which you say the Defendants cannot rely upon because it is
30 not known to the reader either because it is set out in the
31 leaflet or referred to in the leaflet or common knowledge?
32 Health and safety I have asked you about.
33
34 MR. RAMPTON: Yes. Health and safety does not creep in, in my
35 submission. I am just trying to think what the other
36 things on employment were. Long shifts is there.
37
38 MR. JUSTICE BELL: What about breaks?
39
40 MR. RAMPTON: I would, I think, accept that breaks would creep
41 into the general picture in the sense that a long shift in
42 a hot, smelly, noisy environment might suggest to the
43 reader that it was a continuous shift. I am uncertain
44 about that, and I am happy to leave that one with
45 your Lordship, partly for the reason that I am very
46 confident about breaks anyway. That is, perhaps, not a
47 proper answer to the question. Mr. Atkinson reminds me
48 there is one allegation, and it is the most serious
49 allegation, perhaps, that has been made in the context of
50 employment. That is the docking pay allegation which is,
51 in effect, an allegation of theft.
52
53 MR. JUSTICE BELL: What do you say about that?
54
55 MR. RAMPTON: That has nothing to do with low pay or bad
56 conditions. That is a specific allegation of dishonest
57 conduct and the reader is given no indication whatever that
58 anything like that might be the foundation for the
59 comments, if they are comments, about pay and conditions.
60
