Day 311 - 06 Dec 96 - Page 48


     
     1        get, whatever it is -- it is a penny nowadays, I suppose --
     2        the smallest currency damages.
     3
     4   MR. RAMPTON:  It would plainly be a penny.  But, I mean, I feel
     5        like saying what judges often say to me: but I am not
     6        interested in hypothetical scenarios.
     7
     8   MR. JUSTICE BELL:  I understand that.
     9
    10   MR. RAMPTON:  I think if your Lordship were to conclude (a) that
    11        that was a defamatory statement, (b) that it is untrue,,
    12        which is what I am coming to in a moment, (c) that there
    13        was no reasonable foundation for it, (d) that that led to a
    14        conclusion that McDonald's dominant motive for the
    15        publication of this responsive material was malicious, then
    16        the answer would be a penny.
    17
    18   MR. JUSTICE BELL: Yes.
    19
    20   MR. RAMPTON:  I am sorry, that is not right.  The answer would
    21        be a penny, simply because, as your Lordship has rightly
    22        pointed out, if it be your conclusion, the fact that it
    23        would not have made a blind bit of difference means that
    24        the impact of the accusation, that particular accusation
    25        which happens to be untrue, is minimal.
    26
    27   MR. JUSTICE BELL: Yes.  Were you going to say something else?
    28
    29   MR. RAMPTON:  I am.  I am grateful to Mrs. Brinley-Codd for that
    30        passage, because that founds, at least on this belief that
    31        in the mind of whoever it was that wrote the responsive
    32        material, that the Defendants were immune to reason.  They
    33        got written to; they say they wrote back and said, "You go
    34        to hell, we are just going to go on publishing this
    35        material."  That is number 1.
    36
    37        But number 2 is what happened in 1990.  On that occasion,
    38        which was four years before the responsive material was
    39        written, the Defendants got a writ, true, but they also got
    40        a letter -- and the date is the same as the writ,
    41        20th September 1990 -- in which complaint was made about
    42        the leaflet complained of and in which the following were
    43        asked for: an undertaking not to repeat the allegations, a
    44        statement in open court, and payment of McDonald's costs to
    45        that date, which would have been a few pounds.
    46
    47        Following that, in the very next paragraph of the letter,
    48        Barlow Lyde & Gilbert wrote: "If you will agree to these
    49        proposals within 14 days, we shall not claim any damages.
    50        We will waive our right to damages." 
    51 
    52        One might ask: what would have been the reasonable 
    53        person's, the fair minded, honest person's response to the
    54        such a letter in the particular circumstances of this case?
    55
    56        I will, if I may, propose an answer: "Thank you for your
    57        letter.  You are quite right that there are important parts
    58        of this leaflet which are wrong, and we owe you an apology
    59        for having put them in circulation.  There are other parts
    60        where it looks as though we must agree to differ.  But I am

Prev Next Index