Day 305 - 25 Nov 96 - Page 19


     
     1        infer that that is the fact sheet complained of.
     2
     3        I mean, we say that, as a matter of law, in any event, the
     4        distribution that we are responsible for, that any
     5        fact sheet -- sorry, I will start again.  The law would
     6        compel, we say, the Plaintiffs to produce originals of what
     7        they say was distributed at a specific time that was the
     8        London Greenpeace fact sheet that we are being held
     9        responsible for; we are saying they are under an obligation
    10        to produce that original, in any event.
    11
    12        They are under an obligation to prove, obviously, the
    13        travel path, where we caused that document that has been
    14        produced in court to have been given to a third party.
    15        That is a kind of secondary point to what I am
    16        concentrating on at the moment, which is that if they
    17        failed to bring an original to court, we believe that they
    18        do not have the evidence on its distribution on that
    19        particular date, unless they brought some evidence as to
    20        how the original was lost and how they can be sure that a
    21        copy made from that original document is, indeed, a true
    22        copy of that original document that they have got some good
    23        reason for having lost.
    24
    25        If we keep emphasising, in this part of the case the
    26        obligation is on the Plaintiffs to prove their case.
    27
    28        We did not have one original document verified by a witness
    29        as being the item that they picked up or obtained.  We did
    30        not have one piece of evidence from Barlow Lyde & Gilbert,
    31        or anyone else, as to exactly what happened to that
    32        original, how it got lost and how, fortunately, copies were
    33        made beforehand of that actual discrete document; and,
    34        therefore, there was no evidence brought into this court of
    35        distribution of the fact sheet complained of which can be
    36        said to be the responsibility of me or Helen.
    37
    38        We have got some law on that which, when we do our produce
    39        our legal submissions, after we have some time when
    40        Mr. Rampton has handed over his material, hopefully, we
    41        shall do that next week.
    42
    43        So, what we are saying is that our understanding of the law
    44        is what we have just said, that it is even more compelling
    45        for the Plaintiffs to have that obligation to produce
    46        originals in a situation where there is clear confusion in
    47        everyone's minds as to what specific leaflets people are
    48        referring to because of the wide range that existed.  That
    49        is basically it.  Even the fact that even at this late
    50        stage Mr. Rampton can hand up a document which emanated 
    51        from Manchester only goes to emphasise that even further. 
    52 
    53        I want to sit down for a couple of minutes.
    54
    55   MR. JUSTICE BELL:  Yes, do.  (Pause)
    56
    57   MR. MORRIS:  Can I just make one point in relation to that last
    58        point about the obligation of the other party to prove
    59        originals?  I think one thing that is fairly instructive is
    60        the evidence of Mr. Howes, which McDonald's were hoping to

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