Day 311 - 06 Dec 96 - Page 44
1 served; so, how could it be a response to attack? I am not
2 suggesting that is the whole of the point, but that was the
3 point made, as I understand it. So, it is response to that
4 attack, but it is response to the attack which, as you say,
5 has been carried on in other documents apart from the
6 leaflet since proceedings were begun, including the attack
7 which was being mounted about why are McDonald's carrying
8 on with these proceedings, and what about freedom of speech
9 and everything else. So, it is in response to that general
10 and continuing attack that you would argue McDonald's were
11 entitled to answer that.
12
13 MR. RAMPTON: Yes, entirely. I mean, that is the beginning
14 of ----
15
16 MR. JUSTICE BELL: I have understood it correctly?
17
18 MR. RAMPTON: You have, absolutely. If somebody says to me, and
19 says it repeatedly over a period of time, in public, to the
20 world at large: "The action which you are about to bring to
21 trial in the High Court in London is basely motivated; its
22 only purpose is to suppress the truth, and, in aid of that,
23 you have suppressed large numbers of documents which would
24 have shown the truth", etcetera, and, in the course of
25 that, reasserts the truth of the libel on which I am suing,
26 I am entitled to say, as a matter of law: "That is absolute
27 rubbish. My purpose in bringing the libel action is to
28 demonstrate that the subject matter of the libel is a pack
29 of lies."
30
31 MR. JUSTICE BELL: The allegation of lies -- let us suppose, for
32 the purposes of me putting the question, suppose it were
33 untrue, in fact, that they were lies, because let us
34 suppose it had not been established that Ms. Steel and
35 Mr. Morris knew or believed that anything which was
36 inaccurate were untrue and I thought that was necessary for
37 it to be a lie. That does not mean that it is not relevant
38 to the attack.
39
40 MR. RAMPTON: No, no.
41
42 MR. JUSTICE BELL: What that means is whether you go on and take
43 that into account when you are looking at the question of
44 malice, if it be so.
45
46 MR. RAMPTON: Obviously; and it is not necessary, in the sense
47 that it is logically necessary, but, so long as it is
48 referable to the subject matter of the attack, it gets
49 through the door -- I mean, with miles to spare.
50
51 MR. JUSTICE BELL: So even, as Mr. Preston says, that he could
52 have made, he says, the matter in another way, that does
53 not mean to say it is not relevant. It may be something
54 which goes to the question of malice.
55
56 MR. RAMPTON: Yes, absolutely. On the authorities, the only
57 sort of a statement in response to an attack, and
58 particularly a series of attacks of such virulence as these
59 were, the only thing which would not be privileged,
60 prima facie privileged, subject to the question, would be a
