Day 117 - 27 Apr 95 - Page 32
1 think it is not premature to make it now.
2
3 It would not, we submit, be right or fair that we should
4 have to go to the inconvenience and expense -- the
5 inconvenience is not just ours but those of the witnesses
6 -- calling witnesses on a hypothetical or speculative
7 basis so that the Defendants may have the opportunity of
8 seeing whether they can make a case by cross-examination,
9 not knowing -- perhaps one should put it more strongly,
10 assuming, perhaps, that their witnesses are not going to
11 attend court.
12
13 My Lord, if that is a legitimate consideration of fairness
14 and justice and it would, therefore, not be right to hear
15 those witnesses before any witnesses not so far identified
16 of the Defendants, then it would not (and this is a
17 consequence, an important consequence) a proper use of the
18 court's time and the public money to have those witnesses
19 in the witness box without knowing that there was going to
20 be a witness from the Defendants to respond to them.
21
22 My Lord, I know that your Lordship gave the Defendants some
23 references from the Court of Appeal's judgment on 25th
24 March on the strike out appeal. I have one passage, in
25 particular, in mind which is on page 13 at letter A.
26 I will read the whole of the passage. This is in the
27 judgment of Lord Justice Neill:
28
29 "It is to be remembered that the defences of justification
30 and fair comment form part of the framework by which free
31 speech is protected. It is, therefore, important that no
32 unnecessary barriers to the use of these defences are
33 erected while at the same time the court is able to ensure
34 that its processes are not abused by irresponsible and
35 unsupported pleadings."
36
37 My Lord, I make this submission now to your Lordship, that
38 your Lordship should direct that I should call the evidence
39 I have to deal with the witnesses of the Defendants who
40 have now been identified as being willing to attend court,
41 that is to say, I think it is six of them.
42
43 I think I am right in saying that I can deal with that
44 evidence by means of a mere three or four witnesses of the
45 Plaintiffs. Then, I would submit, your Lordship should say
46 that the rest of all the witnesses that I might need to
47 deal with, the Defendants' other witnesses, should be held
48 in abeyance to give their evidence by way of rebuttal if it
49 should turn out, contrary to expectation, that any of those
50 remaining 37, or whatever it is, witnesses of Plaintiffs
51 do, in fact, come to court.
52
53 MR. JUSTICE BELL: If I thought there was merit in your general
54 argument, an alternative course would be if, for instance,
55 not having had any kind of reply either by completing the
56 form or speaking on the telephone from particular
57 witnesses, I say, Mr. Morris, because it seems to me in
58 organising the calling of the Defendants' witnesses in this
59 part of the case he is in the front line between the two
60 Defendants, if he were to say: "I have now had a response
