Day 311 - 06 Dec 96 - Page 56


     
     1        what the judgment is going to do to us to make a discount
     2        or offset in the damages, in addition to which, which we
     3        will come back to next week, Mr. Atkinson thinks there is
     4        actually a case in the Court of Appeal which says the judge
     5        must not do that.
     6
     7   MR. JUSTICE BELL:  Yes, I would be grateful if I can have that.
     8
     9   MR. RAMPTON:  Sure?  No, I said 'he thinks'.
    10
    11   MR. JUSTICE BELL:  Yes.
    12
    13   MR. RAMPTON:  For all the reasons your Lordship has given-----
    14
    15   MR. JUSTICE BELL:  If there is one I would welcome reference to
    16        it.  The next matter is this: in paragraph 6 I have
    17        actually read through John again, and of course one of the
    18        points which the then Master of the Rolls, now Lord Chief
    19        Justice, in delivering the judgment of the court made was
    20        that there has been precious little said by the Court of
    21        Appeal about actual awards of damages.  So there is not
    22        much.
    23
    24   MR. RAMPTON:  Not much to go on.
    25
    26   MR. JUSTICE BELL:  I do not suppose you can refer me to any
    27        comparable case which is not a jury decision which helps?
    28
    29   MR. RAMPTON:  I will tell your Lordship this, which I do know,
    30        we have not put it before your Lordship because we do not
    31        think it is strictly comparable or even sufficiently
    32        comparable to help your Lordship.  We do know a case called
    33        Upjohn v the BBC and Another which I am sure your Lordship
    34        has heard of.
    35
    36   MR. JUSTICE BELL:  I am not sure I do not have a copy of
    37        Mr. Justice May's judgment somewhere.
    38
    39   MR. RAMPTON:  That is fine.
    40
    41   MR. JUSTICE BELL:  I have probably lost it.  What did that say?
    42
    43   MR. RAMPTON:  I do not know what the judgment said, but it was a
    44        claim by a pharmaceutical company.
    45
    46   MR. JUSTICE BELL:  It was not dissimilar to this case in some
    47        respects.
    48
    49   MR. RAMPTON:  In some respects.
    50 
    51   MR. JUSTICE BELL:  Halcyon sued, among others, a professor for 
    52        saying nasty things, or rather Upjohn sued. 
    53
    54   MR. RAMPTON:  Halcyon has many properties.
    55
    56   MR. JUSTICE BELL:  An arm of the media and a professor saying
    57        things about Halcyon, which is one of their preparations.
    58        Upjohn had also said unkind things about the professor in
    59        his good faith, so he counterclaimed, as the Defendants
    60        have done here, and Upjohn succeeded and got damages but

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