Day 313 - 13 Dec 96 - Page 37
1 because the Plaintiffs are trying to infer the matters
2 related in paragraph 1 about particular leaflets being used
3 held against us, it is clear from the face of the leaflets
4 that the motive behind the campaign was genuine and
5 specifically. It is clear from our conduct in court and
6 from the fact that we put ourselves through this epic legal
7 battle that we have a genuine belief in the criticisms made
8 in the fact sheet, and that that is our motivation for
9 fighting the case and my motivation for distributing A5
10 anti-McDonald's leaflets, and my motivation for attendance
11 at the picket of McDonald's Head Office on 16th October
12 1989. And, of course, for the subsequent pickets as well.
13
14 4: the above quote from Lord Diplock, in particular the
15 parts emphasised, that is, in relation to being indignant
16 at what someone believes to be the Corporation's conduct
17 and welcoming the opportunity of exposing it, should also
18 be taken into account when considering the Plaintiffs'
19 assertion that express malice can be assumed from, (A)
20 continued distribution of similar leaflets after the
21 service of writs, (B) press releases and media interviews
22 asserting that the leaflet complained of is true and/or
23 drawing attention to evidence and legal matters aired
24 during the course of the trial and pretrial hearings.
25
26 Obviously, they are all things that are alleged by the
27 Plaintiffs as showing signs we were motivated by malice,
28 and we would say it is clear from what Lord Diplock says
29 that that simply cannot be correct.
30
31 5: the Plaintiffs have argued that express malice can be
32 assumed because the Defendants have persisted in the plea
33 of justification despite an "invitation" enclosed with the
34 writs to apologise. This argument can safely be ignored
35 since it is clear from the evidence that the Defendants
36 persisted in the plea of justification because they
37 believed the leaflet to be true, and on this very point
38 Lord Diplock states in the same case at page 152 D: "A
39 refusal to apologise is at best but tenuous evidence of
40 malice for it is consistent with a continuing belief in the
41 truth of what one has said".
42
43 6: the Plaintiffs also assert that it can be assumed that
44 the Defendants are motivated by express malice because
45 during the course of the trial they have made accusations
46 that the Plaintiffs' witnesses are not telling the truth or
47 that their evidence was compromised by their financial
48 dependence on McDonald's and loyalty to the Company. In
49 any instance where this has occurred this is, in fact,
50 similarly consistent with a continuing belief in the truth
51 of the fact sheet.
52
53 7: when considering the question of whether or not the
54 Defendants believed the fact sheet to be true, the overall
55 messages conveyed by the fact sheet should be considered
56 rather than a detailed analysis of each particular
57 sentence. The court should bear in mind that people do
58 not, even when handing out leaflets, generally analyse
59 every word and turn of phrase to determine its strict legal
60 construction -- I missed out the word 'legal' from the
