Day 310 - 04 Dec 96 - Page 12
1 the Defendants are entitled to rely upon the health and
2 safety part of their case.
3
4 MR. RAMPTON: Yes.
5
6 MR. JUSTICE BELL: What if it were comment?
7
8 MR. RAMPTON: I am just wondering whether there is a sufficient
9 indication in relation to long shifts in hot, smelly and
10 noisy environments. I suspect not. There is not a
11 reference to health and safety, I would suggest, even by
12 implication. The reader would not know that the
13 commentator had in mind also the health and safety of the
14 workers.
15
16 MR. JUSTICE BELL: Trying to understand what the essential
17 principle behind the case is on the point of the defendant,
18 in support of fair comment, being able to refer to matters
19 which are set out in the words complained of, or
20 sufficiently referred to or common knowledge, is the
21 principle really no more than this? In support of a
22 defence of fair comment a defendant can only rely on facts
23 or matters which the reader will know of or might
24 reasonably be expected to know of so that he can judge the
25 comment himself and, obviously, if something is set out in
26 the leaflet, that is so.
27
28 MR. RAMPTON: He can make up his own mind.
29
30 MR. JUSTICE BELL: If it is sufficiently referred to, that is
31 so, and if it is a matter of really common knowledge, that
32 is so. That is why those three categories are referred to
33 in cases. But it all boils down to this: Has the reader
34 been given a fair chance to judge for himself whether the
35 comment is fair or not?
36
37 MR. RAMPTON: That is the whole reason why the defence of fair
38 comment is so generous to the defendant: because it does
39 not compel a conclusion in the reader's mind. The
40 commentator is free to express his honest opinion on facts
41 which are available to the reader by one route or another,
42 so that when it comes to the trial of a libel action the
43 jury or the judge can say, "Well, I might not agree with
44 that comment in the light of these facts but the defendant
45 was free to express that opinion".
46
47 MR. JUSTICE BELL: Yes.
48
49 MR. RAMPTON: Whereas if you have a statement of fact, which I
50 am bound to say we see these statements here as being, the
51 reader does not have that choice. The conclusion is
52 presented for him as truth. And, in those circumstances,
53 the defendant will lose unless the jury or the judge agrees
54 that he was right.
55
56 MR. JUSTICE BELL: I did find... I do not know whether I made
57 a note of it. Yes, I think it was paragraphs 704 and 705
58 of Gatley where there was something to the effect that --
59 Duncan & Neil at paragraph 12.13: "Any matter which does
60 not indicate with reasonable clearness that it purports to
