Day 052 - 21 Nov 94 - Page 11


     
     1        an irreversible injustice to the plaintiff, the appeal
     2        against the grant of leave to allow the late amendment
     3        would be dismissed."
     4
     5        My Lord, one ought to look to see -- I am afraid I have not
     6         -- what stage it was at which the leave was granted.
     7
     8   MR. JUSTICE BELL:  It was during ---
     9
    10   MR. RAMPTON:  During the trial, I think.
    11
    12   MR. JUSTICE BELL:  -- the trial.
    13
    14   MR. RAMPTON:  Yes, exactly.  My Lord, in a sense, that deals
    15        with the point your Lordship raised in relation to Lord
    16        Justice Stocker's judgment in Smith v. Baron because this
    17        is the Court of Appeal, a three-judge court saying:  "Well,
    18        whenever it comes, the overriding principle is that
    19        amendment really must be granted if it is necessary to
    20        enable the real issues to be decided on by the court
    21        provided always that there is not an injustice or a
    22        prejudice to the other party which is irremedial.  So,
    23        really, in a sense, though it may be that the later the
    24        amendment comes the greater the risk of injustice,
    25        nevertheless, that does not really impinge on the general
    26        principle which is applied even up to the moment before
    27        judgment.
    28
    29        My Lord, may I then pass to the particular amendments?  The
    30        first one -- I have taken them in reverse order; no, I have
    31        them in the right order -- 4F is the one which deals with
    32        the meaning of the leaflet so far as the Plaintiffs' food
    33        is concerned.
    34
    35        What is now pleaded is set out at (a) on page 5 of our
    36        skeleton argument.  What we propose, with your Lordship's
    37        leave, to substitute for that is set out at (b); the
    38        important short paragraph being this:  "Sell meals which
    39        cause cancer of the breast and bowel and heart disease in
    40        their customers".
    41
    42        My Lord, the proposed amendment to 4L again is in a sense a
    43        refinement of what is already pleaded.  That is at (c) on
    44        page 6, "are responsible for the inhumane torture and
    45        murder of cattle, chickens and pigs".  What we propose by
    46        the proposed amendment to 4L is to, as it were, shake out
    47        of the existing pleaded meaning those elements of it which
    48        are, arguably, or probably expressions of opinion rather
    49        than statements of fact; to confine our complaint in
    50        relation to the treatment of animals to those statements of 
    51        fact in the leaflet which we say are false as well as being 
    52        defamatory. 
    53
    54        My Lord, I will come back to that later, if I may.  May
    55        I deal straightaway with 4F and start by referring your
    56        Lordship to Gatley at paragraph 102 on page 55?
    57
    58   MR. JUSTICE BELL:  May I just ask, so I can get it clear,
    59        because I found it helpful to have the copy of the draft
    60        amended Statement of Claim which includes everything in, it

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