Day 146 - 03 Jul 95 - Page 37
1 simply is not good enough to put down these particular
2 paragraphs as being particulars of malice. All they, in
3 effect, do is to set out the contention of the Defendants
4 that the Second Plaintiff was malicious in publishing these
5 documents. That is all it does. It does not go on to give
6 any facts or matters supporting that contention.
7
8 What it is like, my Lord, is if one is doing a pleading, a
9 reply alleging malice, normally in a libel action, those
10 three paragraphs that are called particulars, those are the
11 wrapping up paragraphs. One has done a whole stream of
12 facts and matters which one says shows malice, and then one
13 wraps it up by saying that they publish knowing the untruth
14 reckless as to truth or falsity.
15
16 MR. JUSTICE BELL: I appreciate it is not your pleadings. I am
17 asking you to be devil's advocate in a sense, but what sort
18 of particulars might be in this case, other than that the
19 Second Plaintiff just got so cross with the Defendants that
20 ----
21
22 MR. ATKINSON: That would not, of course, be in our case. That
23 certainly would not be malice under Horricks and Lowe,
24 Horricks and Lowe being the House of Lords' case on
25 qualified privilege. It certainly would not be. That is
26 what Horricks and Lowe was all about, that anger was not
27 enough to be said to be malice in law.
28
29 What I will do, the way I can reply to your Lordship on
30 that is not to start speculating on what the Defendants
31 might or might not put in any further and better
32 particulars, but to say the sort of thing that we have put
33 in in our reply alleging malice, i.e., that there is no
34 truth in the allegation concerned and the Defendants --
35 sorry -- actually it is better, I think -- it is a very bad
36 point, my Lord, on the reply. So what I will do I would
37 rather say what we have put in our defence to counterclaim
38 and our further and better particulars. There we have set
39 out in those particulars all sorts of grounds for inferring
40 that the matters were published knowing them to be untrue;
41 for example, that we have provided evidence which went
42 against what was said in the leaflets, and the fact that,
43 to put it crudely, the Defendants had it in for McDonald's
44 and continue to have it in for McDonald's, and continue to
45 publish libels on McDonald's notwithstanding any material
46 presented in this case or any evidence that is given on
47 either side. So it is that sort of thing. I do not
48 really, with respect, want to go too far into the realms of
49 what might be pleaded.
50
51 In essence, one simply is seeking all facts and matters
52 relied upon to support the contention that the paragraphs
53 that are now pleaded stand up. So it would be all the
54 facts and matters. As the request -- your Lordship,
55 I hope, has my request ----
56
57 MR. JUSTICE BELL: Yes.
58
59 MR. ATKINSON: -- which states, "... all facts and matters
60 relied upon in support of the above contention". So, in
