Day 309 - 03 Dec 96 - Page 33
1 as children are concerned, I would have said that
2 your Lordship's rendition is pretty fair and does not go
3 beyond the pleaded meanings, not significantly,
4 particularly -----
5
6 MR. JUSTICE BELL: Presumably, if a jury, unless there is some
7 kind of special verdict, is dealing with the case, you
8 never know precisely what they thought it meant. It seems
9 to me that it is quite possible that 12 different jurymen
10 may actually read it in 12 different ways.
11
12 MR. RAMPTON: I am sure it happens.
13
14 MR. JUSTICE BELL: But there is nothing wrong, it seems to me,
15 in finding a meaning which is more serious. I have said
16 something like this to Ms. Steel or Mr. Morris, but I would
17 like to try it out on you. You can find a meaning which is
18 more serious than that pleaded by the Plaintiffs. There is
19 no harm in that if, at the end of the day, you find that it
20 is justified.
21
22 MR. RAMPTON: Absolutely.
23
24 MR. JUSTICE BELL: What you cannot do is: (a) find a meaning
25 which is more serious; (b), say it is indefensible by one
26 defence or another; and (c), award damages on that basis.
27
28 MR. RAMPTON: Absolutely. That would be wrong. That is what
29 you are not allowed to do. There is no reason why the jury
30 should not find a stronger case against the Plaintiff than
31 the one he complained of and say to themselves: "Well, the
32 greater includes the less; therefore, the defendant wins."
33
34 MR. JUSTICE BELL: There is no doubt, is there, that the real
35 sting is the wrongful exploitation of children by
36 advertising and marketing, one way or another?
37
38 MR. RAMPTON: It is the attribution of a state of mind, once
39 again, to McDonald's, a manipulation, and an exploitation
40 of children by deceptive and seductive means, which may
41 well not only leak money out of their parents' pockets but
42 lead to the children's own ill health. There are really
43 only two stings in that: deliberately exploitative,
44 manipulative, deceptive behaviour, on the one hand, and
45 exposure of children to risk, on the other hand.
46
47 The key to it -- Mr. Atkinson has just said to me, and he
48 is absolutely right -- because it is a defamation action,
49 if the meaning is there, the key is the wrong link.
50
51 MR. JUSTICE BELL: I think someone, either Ms. Steel or
52 Mr. Morris -- I think it might have been Mr. Morris--
53 suggested that Drake J., in front of "exploiting" -- and
54 I think it was in relation to employment -- put in a word
55 "improperly"; and it occurred to me that "wrongly" might
56 be sufficient. It has to be a pejorative term one way or
57 the other. There has to be an element of moral
58 culpability, I think Neill L.J. said in the case where all
59 the authorities in relation to meaning were summarised.
60 I have forgotten the name of it now.
