Day 311 - 06 Dec 96 - Page 44


     
     1        served; so, how could it be a response to attack?  I am not
     2        suggesting that is the whole of the point, but that was the
     3        point made, as I understand it.  So, it is response to that
     4        attack, but it is response to the attack which, as you say,
     5        has been carried on in other documents apart from the
     6        leaflet since proceedings were begun, including the attack
     7        which was being mounted about why are McDonald's carrying
     8        on with these proceedings, and what about freedom of speech
     9        and everything else.  So, it is in response to that general
    10        and continuing attack that you would argue McDonald's were
    11        entitled to answer that.
    12
    13   MR. RAMPTON:  Yes, entirely.  I mean, that is the beginning
    14        of ----
    15
    16   MR. JUSTICE BELL:  I have understood it correctly?
    17
    18   MR. RAMPTON:  You have, absolutely.  If somebody says to me, and
    19        says it repeatedly over a period of time, in public, to the
    20        world at large: "The action which you are about to bring to
    21        trial in the High Court in London is basely motivated; its
    22        only purpose is to suppress the truth, and, in aid of that,
    23        you have suppressed large numbers of documents which would
    24        have shown the truth", etcetera, and, in the course of
    25        that, reasserts the truth of the libel on which I am suing,
    26        I am entitled to say, as a matter of law: "That is absolute
    27        rubbish.  My purpose in bringing the libel action is to
    28        demonstrate that the subject matter of the libel is a pack
    29        of lies."
    30
    31   MR. JUSTICE BELL:  The allegation of lies -- let us suppose, for
    32        the purposes of me putting the question, suppose it were
    33        untrue, in fact, that they were lies, because let us
    34        suppose it had not been established that Ms. Steel and
    35        Mr. Morris knew or believed that anything which was
    36        inaccurate were untrue and I thought that was necessary for
    37        it to be a lie.  That does not mean that it is not relevant
    38        to the attack.
    39
    40   MR. RAMPTON:  No, no.
    41
    42   MR. JUSTICE BELL:  What that means is whether you go on and take
    43        that into account when you are looking at the question of
    44        malice, if it be so.
    45
    46   MR. RAMPTON:  Obviously; and it is not necessary, in the sense
    47        that it is logically necessary, but, so long as it is
    48        referable to the subject matter of the attack, it gets
    49        through the door -- I mean, with miles to spare.
    50 
    51   MR. JUSTICE BELL:  So even, as Mr. Preston says, that he could 
    52        have made, he says, the matter in another way, that does 
    53        not mean to say it is not relevant.  It may be something
    54        which goes to the question of malice.
    55
    56   MR. RAMPTON:  Yes, absolutely.  On the authorities, the only
    57        sort of a statement in response to an attack, and
    58        particularly a series of attacks of such virulence as these
    59        were, the only thing which would not be privileged,
    60        prima facie privileged, subject to the question, would be a

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