Day 311 - 06 Dec 96 - Page 45


     
     1        statement which was wholly unconnected with the subject
     2        matter of the attack and its response.
     3
     4   MR. JUSTICE BELL:  You have given an example of -----
     5
     6   MR. RAMPTON:  There are lots of examples given in the
     7        authorities.  For example, if I am accused of fraud, I can
     8        say: "Well, that is a damned lie.  You should not believe a
     9        words that chap says; he is an habitual liar."  That is all
    10        referable to the attack.  But if I go on to add: "And do
    11        you know that he is a paederast", I am doubtful whether
    12        that final statement would be the subject of the
    13        privilege.
    14
    15   MR. JUSTICE BELL:  So, suppose there were two particular
    16        defamatory statements in what I will just call the second
    17        Plaintiffs' pre-trial leaflets ---
    18
    19   MR. RAMPTON:  Yes.
    20
    21   MR. JUSTICE BELL:  -- the allegation that Ms. Steel and
    22        Mr. Morris had lied one way or another, and the allegation
    23        which is, I suppose, a response to the attack "why are
    24        McDonald's going ahead with this", the allegation that
    25        McDonald's have perfectly reasonably written frequently to
    26        them and they have got no response, when I may well decide
    27        that there was a letter about another leaflet in 1984 and
    28        then, in fact, nothing until the letter with the actual
    29        writ.
    30
    31   MR. RAMPTON:  That is a point I want to come back to.
    32
    33   MR. JUSTICE BELL:  Yes, do in a moment.  Suppose I say: "Well,
    34        that was untrue, and it was defamatory because it was
    35        painting Ms. Steel and Mr. Morris as being stubbornly
    36        unhelpful in the matter"; suppose, so far as the allegation
    37        of lies was concerned, it was not substantially justified,
    38        it was defamatory, but a relevant response to an attack,
    39        and I did not find malice there; but, in relation to the
    40        not responding to letters, I thought that was defamatory,
    41        untrue, a relevant response to an attack, but I did find
    42        malice in relation to that; suppose that were so.
    43
    44   MR. RAMPTON:  My Lord, that is an impossible conception, if
    45        I may respectfully say so.
    46
    47   MR. JUSTICE BELL:  Is it, if you carried on making the
    48        allegation when it is quite clear to you that it is not
    49        right?
    50 
    51   MR. RAMPTON:  There is no evidence about that. 
    52 
    53   MR. JUSTICE BELL:  Well, there is.
    54
    55   MR. RAMPTON:  No, no.  I am sorry.  What I mean is, there is no
    56        evidence on our side about that.  What your Lordship would
    57        have to consider, if it were defamatory to say that at all,
    58        is what the defamatory sting of that allegation is.
    59
    60   MR. JUSTICE BELL:  Yes.

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