Day 309 - 03 Dec 96 - Page 67


     
     1
     2   MR. RAMPTON:  It may be.  It may have been a deliberate
     3        decision.  One does not know.
     4
     5   MR. JUSTICE BELL:  The alternative to that is that they decided
     6        what really hurt was saying that this leaflet was lies, not
     7        that McDonald's PR or Communications Department, not what
     8        McDonald's Communications Department said the leaflet said
     9        was lies.
    10
    11   MR. RAMPTON:  That is right.  One also notices that there is no
    12        way in which that missing page and the bit can be squeezed
    13        into the counterclaim, because nowadays, if you want to
    14        rely on context, you have to plead it.  You have to say,
    15        "I rely on context".  It is Tebbitt v. Bookbinder in the
    16        Court of Appeal.  I am afraid I cannot remember the date,
    17        which is why (as your Lordship will have noticed) there are
    18        parts of the leaflet, fact sheet so-called, in this case
    19        which I, on reflection, would have quite liked to have
    20        relied upon as context but have not been able to do so
    21        because there is no plea in my Statement of Claim that
    22        I want to rely on the context, other than the words
    23        complained of.
    24
    25   MR. JUSTICE BELL:  I have declared this in open court because
    26        your submissions on counterclaim have yet to come and
    27        I have reason to believe Ms. Steel and Mr. Morris may ask
    28        me if they can reply to you on counterclaim.
    29
    30   MR. RAMPTON:  The point your Lordship has just taken is one that
    31        has escaped me completely.  I had not spotted it at all.
    32        But the answer to it must be, off the top of my head -- if
    33        I change my mind perhaps I can come back to it tomorrow --
    34        that for that reason (amongst others) CFCs have got nothing
    35        whatever to do with this case.
    36
    37   MR. JUSTICE BELL:  Query in any event, and this is really my
    38        last query on whether damage to the ozone layer and CFCs
    39        and HCFCs do have a part in this case by reason of the
    40        counterclaim only.  If I consider at the end of the day
    41        that whether damage to the ozone layer or CFCs and HCFCs,
    42        whatever the truth about McDonald's responsibility,
    43        culpable responsibility, in that area, if I believe that
    44        the Defendants believed that they were responsible for it,
    45        do I look into the merits of ozone layer or CFCs or HCFCs,
    46        or do I say, "Well, I do not have to trouble about that
    47        because I accept that the Defendants honestly believed it,
    48        so it was defamatory and unjustifiably so to say that part
    49        was lies".
    50 
    51   MR. RAMPTON:  No, because that part is not part of what they 
    52        complain about. 
    53
    54   MR. JUSTICE BELL:  It is not there?
    55
    56   MR. RAMPTON:  It cannot have any conceivable relevance.  The
    57        only way in which it could be relevant, I suspect, is if
    58        I said that I rely -- and it may be that I do; I will have
    59        to look and see what I have said about malice -- but if
    60        I said we rely in support of the plea of malice in the main

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