Day 310 - 04 Dec 96 - Page 33
1 environment/index.html">litter allegation in that array of charges is trivial. On
2 the other hand, if destruction of the rainforest on a vast
3 scale were proved and/or causing starvation in the Third
4 World succeeded by way of justification, then the fact that
5 environment/index.html">litter failed, or not telling the truth about recycled
6 content, would not help me at all.
7
8 MR. JUSTICE BELL: No.
9
10 MR. RAMPTON: That would be a classic section 5 defence.
11
12 MR JUSTICE BELL: Notwithstanding what you have said about
13 section 6, I would just like to think about that for the
14 moment. (Pause)
15
16 Is not all that section 6, does not all section 6 say:
17 suppose you have five defamatory allegations of fact -- it
18 is a combination of section 5 and section 6, as section 5
19 has been interpreted -- suppose you have five defamatory
20 allegations of fact all in the same immediate area, related
21 to some extent to each other, and then, at the end of that,
22 you express an opinion in defamatory terms. You are
23 entitled to succeed on the defence of fair comment in
24 relation to the last defamatory allegation, the defamatory
25 opinion, if you only succeed on justifying some of the
26 defamatory statements of fact, provided they are enough for
27 a fair-minded person to have reached the defamatory view
28 which is expressed at the end of the day.
29
30 MR. RAMPTON: That is right.
31
32 MR JUSTICE BELL: But the Plaintiff can still say: "Well, I have
33 been defamed in the other statements of fact which have not
34 been justified, and I am entitled for damages (if they are
35 worth anything) in relation to those."
36
37 MR. RAMPTON: Oh, absolutely. I mean, the defence of fair
38 comment is necessarily confined to comments. As
39 Mr Atkinson has put into our submission at one stage, the
40 defence to defamatory allegations of fact, even if they are
41 used as a foundation for a defamatory comment, must only be
42 justification. In the situation that your Lordship has
43 just described, the defendant would probably do rather
44 badly.
45
46 My Lord, the reference in the written submissions is (g) at
47 the top of page 7.
48
49 MR. JUSTICE BELL: Yes. I still find it difficult to
50 understand the bottom of page 1,033, but that does not
51 matter because I can forget it, can I?
52
53 MR. RAMPTON: Anyway, they were not asked to think about
54 section 6, so it could be regarded as obiter.
55
56 MR JUSTICE BELL: It would not have been binding anyway.
57
58 MR. RAMPTON: No.
59
60 MR. JUSTICE BELL: What I propose, subject to a little
