Day 052 - 21 Nov 94 - Page 11
1 an irreversible injustice to the plaintiff, the appeal
2 against the grant of leave to allow the late amendment
3 would be dismissed."
4
5 My Lord, one ought to look to see -- I am afraid I have not
6 -- what stage it was at which the leave was granted.
7
8 MR. JUSTICE BELL: It was during ---
9
10 MR. RAMPTON: During the trial, I think.
11
12 MR. JUSTICE BELL: -- the trial.
13
14 MR. RAMPTON: Yes, exactly. My Lord, in a sense, that deals
15 with the point your Lordship raised in relation to Lord
16 Justice Stocker's judgment in Smith v. Baron because this
17 is the Court of Appeal, a three-judge court saying: "Well,
18 whenever it comes, the overriding principle is that
19 amendment really must be granted if it is necessary to
20 enable the real issues to be decided on by the court
21 provided always that there is not an injustice or a
22 prejudice to the other party which is irremedial. So,
23 really, in a sense, though it may be that the later the
24 amendment comes the greater the risk of injustice,
25 nevertheless, that does not really impinge on the general
26 principle which is applied even up to the moment before
27 judgment.
28
29 My Lord, may I then pass to the particular amendments? The
30 first one -- I have taken them in reverse order; no, I have
31 them in the right order -- 4F is the one which deals with
32 the meaning of the leaflet so far as the Plaintiffs' food
33 is concerned.
34
35 What is now pleaded is set out at (a) on page 5 of our
36 skeleton argument. What we propose, with your Lordship's
37 leave, to substitute for that is set out at (b); the
38 important short paragraph being this: "Sell meals which
39 cause cancer of the breast and bowel and heart disease in
40 their customers".
41
42 My Lord, the proposed amendment to 4L again is in a sense a
43 refinement of what is already pleaded. That is at (c) on
44 page 6, "are responsible for the inhumane torture and
45 murder of cattle, chickens and pigs". What we propose by
46 the proposed amendment to 4L is to, as it were, shake out
47 of the existing pleaded meaning those elements of it which
48 are, arguably, or probably expressions of opinion rather
49 than statements of fact; to confine our complaint in
50 relation to the treatment of animals to those statements of
51 fact in the leaflet which we say are false as well as being
52 defamatory.
53
54 My Lord, I will come back to that later, if I may. May
55 I deal straightaway with 4F and start by referring your
56 Lordship to Gatley at paragraph 102 on page 55?
57
58 MR. JUSTICE BELL: May I just ask, so I can get it clear,
59 because I found it helpful to have the copy of the draft
60 amended Statement of Claim which includes everything in, it
