Day 313 - 13 Dec 96 - Page 55


     
     1        for the kind of conduct alleged against him by the words
     2        complained of?  I submitted to your Lordship the other day
     3        that the effect of Plato Films v. Speidil was that there
     4        has to be what I call gritty evidence of an improper kind.
     5        The case of Dingle, which your Lordship has looked at for a
     6        different purpose during the course of this case in
     7        relation to the question of how far can a -----
     8
     9   MR. JUSTICE BELL:  That has something about similar libel by
    10        others not going to mitigation of damages.
    11
    12   MR. RAMPTON:  That is right.  The ratio of the decision was that
    13        the fact that other people may have defamed the plaintiff
    14        on other occasions and so tarnished his reputation is not
    15        available to the defendant in the instant case by way of
    16        mitigation.
    17
    18        My Lord then, finally, and I hope I shall not be very long,
    19        the article 10 point.  My first rhetorical question is:  If
    20        that argument were well-founded, who is going to pay the
    21        costs thrown away by the lateness of the application?
    22
    23   MR. JUSTICE BELL:  Of all the things I have to concern myself
    24        with that, fortunately, is some way away.
    25
    26   MR. RAMPTON:  All I am really saying is that is only a shorthand
    27        for saying that, generally speaking, if you say an action
    28        is unsustainable as a matter of law by want of capacity,
    29        which is the argument advanced here, you must say it at the
    30        beginning so that you do not then have two and a half years
    31        of costs incurred.
    32
    33   MR. JUSTICE BELL:  There is authority to that effect, but it
    34        does not mean to say -- if someone came out with an
    35        incontrovertible argument that the proceedings were
    36        ill-founded that would be it, would it not, however late?
    37
    38   MR. RAMPTON:  No, not necessarily.  It would depend, and
    39        sometimes the court will say, "You can take that point but
    40        only if you undertake to pay all the costs thrown away by
    41        the lateness of your application".
    42
    43   MR. JUSTICE BELL:  Yes.
    44
    45   MR. RAMPTON:  Otherwise you have lost the point.  That is my
    46        first point.
    47
    48   MR. JUSTICE BELL:  However that may be, I have to reach a
    49        decision on the argument raised.
    50
    51   MR. RAMPTON:  Yes.  Can I, first of all, remind your Lordship --
    52        I do not need to ask your Lordship to look at it -- of what
    53         -- well, I will start in a different way.  I will start,
    54        if I may, with the Brind case, which is R v. Home
    55        Secretary, ex parte Brind [1991] 1 AC 696, and I will pass
    56        up a copy if I may.  (Handed).
    57
    58        My Lord, I am not asking your Lordship to look at a great
    59        wodge of this.  The effect of this case, so far as it is
    60        relevant to the present question, is this:  Of course, the

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