Day 263 - 14 Jun 96 - Page 11


     
     1   MR. JUSTICE BELL:  You have put your point, and I will have to
     2        consider it.
     3
     4   MR. MORRIS:  The last point I was going to make is about the
     5        post-1990 -- sorry -----
     6
     7   MR. JUSTICE BELL:  Post-September.
     8
     9   MR. MORRIS:  Post-September 1990.  The first thing is, any
    10        agents -- and we have heard from Mr. Nicholson that there
    11        were something like four -- who remained in the group after
    12        September 1990, whether it was for one week or for six
    13        months, it would be relevant to our consent pleadings of
    14        the Plaintiffs' involvement, because if they continued to
    15        distribute London Greenpeace fact sheets, or whatever,
    16        whatever their case might be, we have the right to make our
    17        case, and our case is that they have consented through
    18        their involvement.  So, that is the first thing that is
    19        relevant to our case on consent.
    20
    21        Secondly, it is relevant to the Plaintiffs' case against us
    22        on malice what the agents observed after September 1990.
    23        Obviously, they would have been absolutely spellbound by
    24        any discussions of what happened after the writs were
    25        served amongst the Defendants or in the group in general;
    26        and that will be relevant to the Plaintiffs' allegation of
    27        malice against us, what was said.
    28
    29        The third point is, relevant to the Plaintiffs' application
    30        for an injunction, what happened after September 1990; and
    31        it is relevant to what I think might be called a pattern of
    32        behaviour.  If someone was exhibiting certain activities or
    33        beliefs after September 1990, that would throw light on
    34        what they were doing before September 1990 -- a continuum.
    35        That is the continuum argument, I think.  It cannot be
    36        suddenly irrelevant what happens after September 1990, if
    37        it was relevant before, what that individual did, or,
    38        indeed, any other agents.
    39
    40        So, the last point of relevance of post-1990 is that it
    41        could be argued it is relevant to the counterclaim where
    42        the Plaintiffs have attacked the Defendants for lying in
    43        the London Greenpeace fact sheet; and, therefore, our views
    44        regarding the bringing of the case -- the Plaintiffs,
    45        actually, have gone further than that.  I think they have
    46        relied on the actual proceedings in their defence of the
    47        counterclaim, that somehow the service of the writ and the
    48        particulars, witness statements -- the witness statements
    49        would follow later -- but the point is that they have
    50        relied on the institution of proceedings as evidence that 
    51        we should have known that if, indeed, we did distribute 
    52        London Greenpeace fact sheets, then we should have known it 
    53        was all untrue, because we got a writ.  It might sound like
    54        a completely ludicrous pleading, but that is their case.
    55        Obviously, in every libel case people would be able to
    56        plead malice just because they have sent a writ to
    57        somebody, or whatever.  Anyway, that is on the lies
    58        argument.  So, I think post-September 1990 is relevant.
    59
    60        I will just say one more thing, that it should be noted

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