Day 112 - 31 Mar 95 - Page 45


     
     1        ago about whether or not there might be some advantage in
     2        dealing with the issue of publication, at any rate so far
     3        as the Plaintiffs' witnesses are concerned, at an earlier
     4        stage than presently?  My Lord, we have given that
     5        considerable thought because, obviously, it has its
     6        attractions in some way, but I fear it does not actually
     7        work.
     8
     9        My Lord, first of all, the difficulty that your Lordship
    10        could not make a decision, for example, no prime facie case
    11        of publication, without hearing all eight of the
    12        Plaintiffs' witnesses.  You have to hear all of them, not
    13        just a selection.  That means that there would be a serious
    14        disruption of my employment witnesses which I am anxious to
    15        avoid, if I possibly can.  It would mean a split in that
    16        issue.
    17
    18        My Lord, that is, as it were, a practical difficulty.  My
    19        Lord, there are two more substantial difficulties of
    20        principle.  The first is that even supposing (which I do
    21        not for even a single moment) your Lordship were to decide
    22        that there was no prime facie evidence of publication of
    23        the leaflet complained of as being the libel, that would
    24        not, we believe, have the effect of stopping the case for
    25        two reasons.
    26
    27        The first, which is a somewhat subtle question of law
    28        perhaps and one might have to revisit it if one ever found
    29        oneself in that position, is that there is, of course, a
    30        distinct claim for what is effectively a perpetual quia
    31        timet injunction.  That, as your Lordship knows, is based
    32        not simply on the publication of the leaflet, but on the
    33        mass of material which has appeared since then and which it
    34        would appear, at any rate some of which it would appear,
    35        the Defendants admit having published.
    36
    37        In order to decide whether that injunction was or ought to
    38        be granted, whatever the status of the original pamphlet,
    39        your Lordship would have to decide whether or not the
    40        statements made in the succeeding material was true or not,
    41        because if it was true you could not then grant an
    42        injunction.
    43
    44        My Lord, that is difficulty one which is a difficulty of
    45        principle.
    46
    47        Even more problematical than that, we think, is that by way
    48        of defence to counterclaim the Plaintiffs rely upon all the
    49        material from the date of the original leaflet right
    50        through until the present day and continuing, that the 
    51        Defendants have published or that the Plaintiffs say the 
    52        Defendants have published.  The Plaintiffs Defence to 
    53        Counterclaim in respect of the claim which the Defendants
    54        have made, is that all that material is false and is known
    55        by the Defendants to have been false when they published
    56        it.  To that end, I fear, all the evidence which is given
    57        on what I call the main claim would have to be given
    58        anyway.  I am not sure that any shortcut would arise, in
    59        fact I believe that it would not arise, if one took the
    60        publication issue earlier.

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