Day 309 - 03 Dec 96 - Page 33


     
     1        as children are concerned, I would have said that
     2        your Lordship's rendition is pretty fair and does not go
     3        beyond the pleaded meanings, not significantly,
     4        particularly -----
     5
     6   MR. JUSTICE BELL:  Presumably, if a jury, unless there is some
     7        kind of special verdict, is dealing with the case, you
     8        never know precisely what they thought it meant.  It seems
     9        to me that it is quite possible that 12 different jurymen
    10        may actually read it in 12 different ways.
    11
    12   MR. RAMPTON:  I am sure it happens.
    13
    14   MR. JUSTICE BELL:  But there is nothing wrong, it seems to me,
    15        in finding a meaning which is more serious.  I have said
    16        something like this to Ms. Steel or Mr. Morris, but I would
    17        like to try it out on you.  You can find a meaning which is
    18        more serious than that pleaded by the Plaintiffs.  There is
    19        no harm in that if, at the end of the day, you find that it
    20        is justified.
    21
    22   MR. RAMPTON:  Absolutely.
    23
    24   MR. JUSTICE BELL:  What you cannot do is: (a) find a meaning
    25        which is more serious; (b), say it is indefensible by one
    26        defence or another; and (c), award damages on that basis.
    27
    28   MR. RAMPTON:  Absolutely.  That would be wrong.  That is what
    29        you are not allowed to do.  There is no reason why the jury
    30        should not find a stronger case against the Plaintiff than
    31        the one he complained of and say to themselves:  "Well, the
    32        greater includes the less; therefore, the defendant wins."
    33
    34   MR. JUSTICE BELL:  There is no doubt, is there, that the real
    35        sting is the wrongful exploitation of children by
    36        advertising and marketing, one way or another?
    37
    38   MR. RAMPTON:  It is the attribution of a state of mind, once
    39        again, to McDonald's, a manipulation, and an exploitation
    40        of children by deceptive and seductive means, which may
    41        well not only leak money out of their parents' pockets but
    42        lead to the children's own ill health.  There are really
    43        only two stings in that:  deliberately exploitative,
    44        manipulative, deceptive behaviour, on the one hand, and
    45        exposure of children to risk, on the other hand.
    46
    47        The key to it -- Mr. Atkinson has just said to me, and he
    48        is absolutely right -- because it is a defamation action,
    49        if the meaning is there, the key is the wrong link.
    50 
    51   MR. JUSTICE BELL:  I think someone, either Ms. Steel or 
    52        Mr. Morris -- I think it might have been Mr. Morris-- 
    53        suggested that Drake J., in front of "exploiting" -- and
    54        I think it was in relation to employment -- put in a word
    55        "improperly"; and it occurred to me that "wrongly" might
    56        be sufficient.  It has to be a pejorative term one way or
    57        the other.  There has to be an element of moral
    58        culpability, I think Neill L.J. said in the case where all
    59        the authorities in relation to meaning were summarised.
    60        I have forgotten the name of it now.

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