Day 310 - 04 Dec 96 - Page 30


     
     1        occasions; it is just that I have not actually raised it.
     2        Everyone has said you must prove publication for an action
     3        in defamation to succeed.  That is not strictly so, because
     4        you could fail to prove publication in the past but prove
     5        that there was, let me say, a high probability of
     6        publication in the future and, therefore, you are entitled
     7        to have an injunction in certain circumstances.
     8
     9        As I understand it, Mr. Rampton, that was one of the
    10        reasons why you were against -- amongst others -- having
    11        the issue of actual publication tried as a separate or
    12        preliminary issue, though I may have misunderstood you on
    13        that.  I think it was when you said that that an injunction
    14        against what might happen as opposed to a remedy for what
    15        has happened came into my mind.
    16
    17   MR. RAMPTON:   That is right, my Lord.  It is dealt with
    18        on -----
    19
    20   MR. JUSTICE BELL:  That was about two years ago.
    21
    22   MR. RAMPTON:   Your Lordship is absolutely right.  In that
    23        hypothetical situation, that we have failed to prove
    24        publication against one or both of the Defendants, we would
    25        still say that there was evidence -- whether your Lordship
    26        thought it right or not is another question -- we would
    27        still say that there was evidence that they intended to
    28        republish or to publish, and, in those circumstances,
    29        nevertheless, assuming that the allegations are false, we
    30        were entitled to a quia timet injunction.  That is dealt
    31        with in paragraph 5 on pages 9 and 10 of our submission.
    32
    33   MR. JUSTICE BELL:  It is on the next page to the matter I have
    34        just asked you about.  Oh, no.
    35
    36   MR. RAMPTON:   It is 9 and 10.
    37
    38   MR. JUSTICE BELL:   9 and 10, yes.
    39
    40   MR. RAMPTON:   Paragraph 5, 9 and 10.  That is, as your Lordship
    41        rightly points out, one of the reasons for not asking
    42        your Lordship to take publication first, because it would
    43        not have been determinative of the issues in the case.
    44
    45   MR. JUSTICE BELL:   That is what you understood you to say.
    46
    47   MR. RAMPTON:   It would not, because if I want a quia timet
    48        injunction, in the ordinary way of things, when no
    49        publication has taken place, if I am to get it I have to
    50        satisfy the court that the words are false. 
    51 
    52   MR. JUSTICE BELL:   Yes.  You have to prove all the other things 
    53        you have set out to prove.
    54
    55   MR. RAMPTON:   Exactly.  So it would have achieved nothing.
    56
    57   MR. JUSTICE BELL:  I am not promoting this because I am offering
    58        any view one way or the other on the issue of actual
    59        publication.  Is that something you are going to say more
    60        about when we come to publication?

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