Day 307 - 27 Nov 96 - Page 52


     
     1        response, was it a legitimate one?
     2
     3   MR. MORRIS:   Yes, sorry.  Yes.  I am not organising this in
     4        such a way where-----
     5
     6   MR. JUSTICE BELL:  I am just breaking it down so I understand it
     7        for my own purposes.
     8
     9   MR. MORRIS:   I mean, first of all, there was no attack.
    10        Secondly, there was no attack by us.  Thirdly, that, if
    11        there was, this was not a response in any event.  This was
    12        a clearly an autonomous attack on our character on the eve
    13        of trial.
    14
    15        Thirdly or fourthly, whatever, is the document a legitimate
    16        document?  First of all, we have to look at the character
    17        of the document, and if it was going to be a response it
    18        has to be a response presumably in kind.  If someone
    19        punches you in the street you have to the right to punch
    20        them back, you do not have a right to shoot them dead.
    21
    22   MR. JUSTICE BELL:   At the moment the question seems to me to be
    23        this: you have said there was no attack; there was no
    24        response to an attack by us.  So what you are going on to
    25        now can only be just on the hypothesis that you are wrong
    26        about that, that there was an attack and ---
    27
    28   MR. MORRIS:   Yes.
    29
    30   MR. JUSTICE BELL:  -- that there was a response, and it seems to
    31        me, then, there are two questions:  Firstly, was what was
    32        said the defamatory words?  Were they relevant to the
    33        attack?  If they were not, the matter stops there.  If they
    34        are relevant to the attack, or could be said to be relevant
    35        to the attack -- and you have obviously got to address me
    36        on the basis that I might find that they were -- then were
    37        they, nevertheless, delivered?  Was the response delivered
    38        with express malice?  But there are two separate issues
    39        there:  Was what was said relevant -----
    40
    41   MR. MORRIS:   And correct, in fact, and correct.  That is
    42        another matter.
    43
    44   MR. JUSTICE BELL:   That is another matter entirely.  That is a
    45        question of justification.
    46
    47   MR. MORRIS:   Right.  OK.
    48
    49   MR. JUSTICE BELL:  But was what was said relevant to the attack,
    50        and you can say anything you want to me about that, and 
    51        then, making all the assumptions against you just so we can 
    52        further the argument, if you are wrong about all these 
    53        things, nevertheless was there express malice?
    54
    55   MR. MORRIS:   Yes.  I think all of these points go to malice
    56        anyway, because -----
    57
    58   MR. JUSTICE BELL:   They may very well do, but it is easier for
    59        me to understand your submissions if you keep it in that
    60        order.

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