Day 052 - 21 Nov 94 - Page 51
1 Group] also raised before us the situation which he says
2 often faces a defendant. The plaintiff at trial may
3 abandon the more serious defamatory meanings which he has
4 pleaded and rely upon a relatively innocuous meaning. If
5 the defendant has set up a potentially defamatory meaning
6 which is more serious than the ultimately relied upon by
7 the plaintiff and sought in his pleadings to justify that
8 meaning, the plaintiff will thus have, at least on the
9 pleadings, material which he can use against the defendant.
10 This, however, seems to us to be a largely theoretical
11 situation. If the plaintiff abandons all the meanings
12 which he has specifically pleaded, and seeks to rely upon a
13 defamatory meaning of less seriousness than that set up by
14 the defendant, and sought to be justified, we see little
15 prospect in practice of his being able to make any capital
16 out of the situation. On the contrary, the adverse comment
17 which such a situation would provide would seem to us to be
18 directed entirely at the plaintiff's case.
19
20 "When we read the particulars of justification some of them
21 appeared to be totally irrelevant, even to the meaning
22 which Mr. Gray had suggested to the master. Others
23 contained not facts, but evidence which it was hoped to put
24 before the jury. These we have struck out. But even so,
25 Mr. Shaw [he was for the plaintiff] was entitled to say
26 that he was at a loss to know what were the characteristics
27 of Petrone of which Mr. Gray was alleging the plaintiff
28 ought to have know.
29
30 "the plaintiff's embarrassment was even more highlighted
31 by the fact that Mr. Rampton [my Lord, I was for one of
32 the other defendants] (on whose clients' behalf the
33 affidavit of Miss Buckley was not sworn) so far from being
34 'unhappy' about the terms which we have quoted,
35 enthusiastically embraced them. Mr. Rampton on behalf of
36 the Daily Mail will be relying on the self same particulars
37 in order to contend that there are reasonable grounds for
38 suspecting that the plaintiff knew that Petrone was a
39 terrorist. It is only in the course of the interchanges
40 between the bench and the bar, that it has become apparent
41 that the self same particulars are to be relied upon as
42 justifying different allegations.
43
44 "It seems to us to have been wholly overlooked that in
45 both cases the defendants were asking for a substantial
46 indulgence by the court, namely, leave to amend in order to
47 set up a plea of justification, two years after they had
48 delivered their original defence. In such a situation,
49 whatever may be the theoretical problems that the
50 defendants might face, the court should not, in our
51 judgment have hesitated in ordering the defendants so to
52 plead their case that the plaintiff knew quite clearly what
53 the defendants were purporting to justify. However, we
54 would go even further and say that whatever may have been
55 the practice to date, [and the date of this case, my Lord,
56 is 1986] in the future a defendant who is relying upon a
57 plea of justification must make it clear to the plaintiff
58 what is the case which he is seeking to set up. The
59 particulars themselves may make this quite clear, but if
60 they are ambiguous then the situation must be made
