Day 310 - 04 Dec 96 - Page 31


     
     1
     2   MR. RAMPTON:   In both publication and malice, your Lordship
     3        will see that I have made reference to the future threat --
     4        at any rate, in malice -- the future threat of
     5        publication.  I have given your Lordship references in
     6        documents.  I have not actually said: "And this bears on
     7        the question of an injunction", but plainly it does.
     8
     9   MR. JUSTICE BELL:  The other matter, again, which I thought
    10        I would probably find when I got to your comments in
    11        relation to the counterclaim -- it is on page 9 of your
    12        legal submissions -- is failure to retract as evidence of
    13        malice; and that is best left until I have read what you
    14        said, is it?
    15
    16   MR. RAMPTON:   It is, my Lord.  I have given your Lordship the
    17        references in Gatley.  There is quite a lot of authority
    18        about it.  There are circumstances, of course, in which a
    19        failure to retract is no evidence of malice at all.  It
    20        depends on the facts of each case.  In other cases, where
    21        the truth stares the Defendant in the face and he fails to
    22        retract it, it may be very good evidence.
    23
    24   MR. JUSTICE BELL:   I think the final matter, subject to any
    25        discussion of possible amendment of the counterclaim -----
    26
    27   MR. RAMPTON:   Can we leave that till Friday, my Lord?  I have
    28        not had a chance to think about it.
    29
    30   MR JUSTICE BELL:   Yes.  (To the Defendants)  Do you have
    31        anything to say about that?  It came into the picture for
    32        the first time.  What I would propose is that we deal with
    33        it first thing on Friday, if that is when we resume, so
    34        that when we go on to what Mr. Rampton's submissions are on
    35        counterclaim and any reply to it, everyone knows whether
    36        I have granted leave or not.
    37
    38   MS. STEEL:   Sorry, did you say deal with it -----
    39
    40   MR. JUSTICE BELL:   Hear any argument first thing on Friday
    41        morning with regard to your application for leave to
    42        amend.  It is a matter I would expect to give a judgment on
    43        one way or another straightaway, or virtually straightaway,
    44        and then everyone would know, but not to deal with it
    45        today.
    46
    47        The final matter I would appreciate some assistance on at
    48        this stage is what O'Connor L.J. said in Polly Peck about
    49        section 6 of the Act, because I do not understand it.
    50 
    51   MR. RAMPTON:   My Lord, it is a mistake. 
    52 
    53   MR. JUSTICE BELL:   Can we just have a look?
    54
    55   MR. RAMPTON:   If I can take my wig off for a moment and replace
    56        it with an academic cap, I would say that the judge made a
    57        mistake.
    58
    59   MR. JUSTICE BELL:   Well, I find that reassuring, eminent as he
    60        was.  I forget which section of your list of authorities

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