Day 307 - 27 Nov 96 - Page 54
1 because they have to be defamatory before you get into
2 there; but what you are saying is, it is a gratuitous
3 insult rather than some kind of reasoned response.
4
5 In so far as that might be so, the relevance of that at the
6 moment seems to me to be directed more at the question of
7 express malice than anything else. If you are attacked in
8 certain material and you say that the material is lies, at
9 the moment it seems to me that that is relevant to the
10 attacking material. I know you say the attacking material
11 is not there, but I have to suppose it is for the purpose
12 of getting this far along the chain of argument. So, to
13 say that the attacking material is lies seems to me to be
14 relevant, and it seems to me that is what you are really on
15 at the moment but I am saying this to you in case I have
16 missed a trick, as it were, but what you are saying now is,
17 in support of your argument, you have come along the
18 argument so far as being attacked, there has been a counter
19 attack, what was said being relevant, nevertheless it is
20 express malice.
21
22 MR. MORRIS: Yes, I mean -----
23
24 MR. JUSTICE BELL: What you are saying at the moment is the
25 gratuity of the insult of lies indicates express malice.
26
27 MS. STEEL: Can I say that you said that it had to say that it
28 was lies, but it does not have to say it is lies, because
29 it could say it is not true. Therefore, there is not an
30 implication in there that people are deliberately putting
31 out information they know to be false.
32
33 MR. JUSTICE BELL: No, no. What I am saying, to say it is lies
34 is relevant to it. To say it is lies is no doubt
35 defamatory, that reduces your reputation in the eyes of
36 ordinary people, but you have got to have something which
37 is defamatory or we are not here at all on the
38 counterclaim.
39
40 MR. MORRIS: I understand that, but the point is, is it an
41 appropriate response? If someone is issuing something
42 which is not true, an appropriate response which would be
43 covered by privileged self-defence, maybe in certain
44 circumstances, would be to say, "No, that is not true",
45 what people are saying the reality is this ---
46
47 MR. JUSTICE BELL: So be it.
48
49 MR. MORRIS: -- but to say that those people are lying -----
50
51 MR. JUSTICE BELL: All this goes to express malice, does it
52 not?
53
54 MR. MORRIS: We are saying that the privileged self-defence
55 argument should not apply to an inappropriate response,
56 where the response is more out of proportion to the
57 criticism. Now, what it is saying is that the fact sheet
58 makes these criticisms -----
59
60 MR. JUSTICE BELL: I thought that is what it said. It cannot
