Day 310 - 04 Dec 96 - Page 29
1 fact whether they think it is probative or not.
2
3 MR. JUSTICE BELL: Yes. The next matter was when I was asking
4 you about 'justified in substance and fact' you used the
5 phrase 'very nearly proved'.
6
7 MR. RAMPTON: I said very nearly?
8
9 MR. JUSTICE BELL: Do you remember?
10
11 MR. RAMPTON: Yes.
12
13 MR. JUSTICE BELL: Did that come from a particular authority
14 where there was some help on that question?
15
16 MR. RAMPTON: No, I think that was just actually rather a loose
17 way of saying that though you cannot necessarily prove all
18 the specific facts that you have published, or indeed all
19 the specific facts you have put into your defence by way of
20 justification, if the substance of the charge is, on the
21 evidence, overall, in the opinion of the court, true, then
22 the defence succeeds.
23
24 MR JUSTICE BELL: It is no magic, it is just a question of
25 ordinary every day judgment.
26
27 MR. RAMPTON: Absolutely.
28
29 MR. JUSTICE BELL: Then I think this is probably the last
30 matter for the moment, because I assume that if you are
31 going to bring the basis for a quia timet injunction, that
32 will come in with publication or matters related to that?
33
34 MR. RAMPTON: Your Lordship will find in those submissions I
35 have made no specific reference to the injunction because
36 I thought that better left until one saw the terms of
37 judgment, but your Lordship will find all the evidence that
38 you would need at the end of the case in those two
39 sections, publication and malice.
40
41 MR. JUSTICE BELL: Yes, the only reason I have raised it, I can
42 see there are circumstances where an allegation of actual
43 publication by the Defendants fails but that does not mean
44 that the action fails, because there could still be basis
45 for being fearful that if an injunction is not granted
46 there will be publication in the future.
47
48 Now, whether or not that has any realistic application to
49 this case or not I am not embarking on at the moment. But
50 I might need some help on it if it is a fall back position
51 for you in this case.
52
53 MR. RAMPTON: I had not actually considered it at this stage of
54 the case. However, we did do, did we not --?
55
56 MS. STEEL: Before we carry on, can someone just say what a
57 quia timet injunction is?
58
59 MR. JUSTICE BELL: It means because he is fearful, because you
60 are fearful. It has been mentioned on a number of
