Day 249 - 14 May 96 - Page 54


     
     1        has become his evidence-in-chief because he brought it in
     2        by his statement.  I am not saying there are not other
     3        factors, but the two balls I am particularly trying to keep
     4        my eye on with Mr. Nicholson is the actual events and
     5        particularly what he said that you did on 16th October,
     6        1989, because that is of obvious potential importance, and
     7        any factors which you wish to bring out so that you can
     8        rely upon them in support of an argument that McDonald's
     9        consented to publication of the leaflet which is now part
    10        of your pleading, and I will add a third matter in case you
    11        are aiming this at Mr. Nicholson as well as Mr. Preston,
    12        although I do not know whether you are or not now, whether
    13        anything which you would want to pray in aid in support of
    14        an argument of what I will just generally call malicious
    15        motivation so far as your counterclaim is concerned.
    16
    17   MS. STEEL:   Right.  You said that the -----
    18
    19   MR. MORRIS:  Can I ask a question because we have not had legal
    20        advice on that, but Mr. Rampton did say the law is that you
    21        cannot plead malice against a corporation.
    22
    23   MR. JUSTICE BELL:  Cannot?
    24
    25   MR. MORRIS:  Plead malice against a corporation and I am not
    26        sure if that is correct.
    27
    28   MR. RAMPTON:  Mr. Morris, my Lord, is no better at summarising
    29        my submissions than I am.  It is not what I said.
    30        Habitually speaking, if you wish to allege malice against a
    31        corporation, if you wish to prove it against a corporation,
    32        you can only do that if you plead and prove -- and
    33        particularly prove -- that some individual, servant or
    34        agent of the corporation who had a hand in the publication
    35        of the words complained of was him or herself actuated by
    36        malice.
    37
    38   MS. STEEL:  I do not know what situation is, whether .....
    39
    40   MR. JUSTICE BELL:  We need not get concerned with that in the
    41        middle of the evidence.  All I have done is swept that in
    42        as a possible factor if you want to question Mr. Nicholson
    43        about it.  But it is those three areas which I see is the
    44        main potential areas.
    45
    46   MS. STEEL:   I mean, that is what I am concentrating on.
    47
    48   MR. JUSTICE BELL:  What I would invite you to do -- it is easy
    49        just to fall into it without really intending to ask a far
    50        reaching question -- is try, if you can, not to ask 
    51        questions like, "What happened at the October 1988 fayre"? 
    52 
    53   MS. STEEL:   He has not given it in chief.  It is in his
    54        statement and .....
    55
    56   MR. JUSTICE BELL:  He has given it in chief.
    57
    58   MS. STEEL:   Not verbally.
    59
    60   MR. JUSTICE BELL:  No, he has not, but if there is some -----

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