Day 177 - 26 Oct 95 - Page 29


     
     1        least, that sounds as though I am inflating the importance
     2        of my own words; I am not trying to do that -- but this is
     3        an important argument, and I do think it important that the
     4        Defendants, if they think there is anything in what I say
     5        worth answering, do have a proper account of everything
     6        that I have said.  So I will try to remember not to go too
     7        quickly, but it is difficult when I am in a discussion with
     8        your Lordship, particularly.
     9
    10        Can I ask your Lordship to look at that passage from the
    11        judgment of Drake J. on 7th July 1993 which I handed in
    12        this morning?
    13
    14   MR. JUSTICE BELL: Yes.
    15
    16   MR. RAMPTON:  The reason I put this in was in anticipation of
    17        what your Lordship said just now, that it is very
    18        difficult; and Diplock L.J. says in that passage from
    19        Slim v. Daily Telegraph -- and rightly on the authorities,
    20        we would respectfully submit -- that the meaning is to be
    21        taken as one of first impression.  Of course, that is in
    22        relation to two letters in the Daily Telegraph.
    23
    24   MR. JUSTICE BELL: It is all right if you are sitting in the
    25        Court of Appeal coming to it fresh as a short matter, is it
    26        not?
    27
    28   MR. RAMPTON:  Quite, exactly.  That is the rule.  That word
    29        "impression" comes again and again in the authorities; it
    30        is a matter of impression.  I will ask your Lordship to
    31        look at those authorities later on.  The reason why this
    32        judgment of Drake J. may have some value is that at
    33        7th July 1993, before the trial began, Drake J. had I think
    34        held two or maybe three -- I think two -- previous
    35        interlocutory hearings which did not concern meaning or a
    36        consideration of the words in any detail, but were
    37        concerned with administrative matters, largely speaking --
    38        as far as I know, I was not there.  But that is perhaps why
    39        what he says is valuable, because one sees a judge whose
    40        mind has not, as it were, been tainted or affected either
    41        by evidence in the case -- I am not suggesting that your
    42        Lordship's has, I am not suggesting that -- or by a
    43        detailed consideration, a repeated consideration of
    44        different parts of the leaflet raised at different times
    45        for different purposes, but somebody who has come to the
    46        words complained of with a relatively fresh mind; and, what
    47        is more, of course, a very experienced jury judge who is
    48        well grounded in the principle that one must not approach
    49        words complained of as though they were legal documents
    50        but, on the contrary, as matter of impression. 
    51 
    52        What he says is: 
    53
    54             "The Plaintiff's case is that the Defendants
    55             published or caused to be published or were
    56             parties to the distribution of a leaflet
    57             entitled 'What's wrong with McDonald's?' The
    58             leaflet makes allegations....."
    59
    60        -- and here Drake J. is not reciting the statement of

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