Day 313 - 13 Dec 96 - Page 55
1 for the kind of conduct alleged against him by the words
2 complained of? I submitted to your Lordship the other day
3 that the effect of Plato Films v. Speidil was that there
4 has to be what I call gritty evidence of an improper kind.
5 The case of Dingle, which your Lordship has looked at for a
6 different purpose during the course of this case in
7 relation to the question of how far can a -----
8
9 MR. JUSTICE BELL: That has something about similar libel by
10 others not going to mitigation of damages.
11
12 MR. RAMPTON: That is right. The ratio of the decision was that
13 the fact that other people may have defamed the plaintiff
14 on other occasions and so tarnished his reputation is not
15 available to the defendant in the instant case by way of
16 mitigation.
17
18 My Lord then, finally, and I hope I shall not be very long,
19 the article 10 point. My first rhetorical question is: If
20 that argument were well-founded, who is going to pay the
21 costs thrown away by the lateness of the application?
22
23 MR. JUSTICE BELL: Of all the things I have to concern myself
24 with that, fortunately, is some way away.
25
26 MR. RAMPTON: All I am really saying is that is only a shorthand
27 for saying that, generally speaking, if you say an action
28 is unsustainable as a matter of law by want of capacity,
29 which is the argument advanced here, you must say it at the
30 beginning so that you do not then have two and a half years
31 of costs incurred.
32
33 MR. JUSTICE BELL: There is authority to that effect, but it
34 does not mean to say -- if someone came out with an
35 incontrovertible argument that the proceedings were
36 ill-founded that would be it, would it not, however late?
37
38 MR. RAMPTON: No, not necessarily. It would depend, and
39 sometimes the court will say, "You can take that point but
40 only if you undertake to pay all the costs thrown away by
41 the lateness of your application".
42
43 MR. JUSTICE BELL: Yes.
44
45 MR. RAMPTON: Otherwise you have lost the point. That is my
46 first point.
47
48 MR. JUSTICE BELL: However that may be, I have to reach a
49 decision on the argument raised.
50
51 MR. RAMPTON: Yes. Can I, first of all, remind your Lordship --
52 I do not need to ask your Lordship to look at it -- of what
53 -- well, I will start in a different way. I will start,
54 if I may, with the Brind case, which is R v. Home
55 Secretary, ex parte Brind [1991] 1 AC 696, and I will pass
56 up a copy if I may. (Handed).
57
58 My Lord, I am not asking your Lordship to look at a great
59 wodge of this. The effect of this case, so far as it is
60 relevant to the present question, is this: Of course, the
