Day 262 - 13 Jun 96 - Page 42


     
     1        complained of.
     2
     3        Those are not publications upon which we do or can seek an
     4        award of damages, since they postdate the writ.  They are,
     5        however, quite obviously, fuel for an allegation of malice
     6        and, much more important than that perhaps, for the claim
     7        for an injunction.
     8
     9   MR. JUSTICE BELL:  For the?
    10
    11   MR. RAMPTON:  Claim for the injunction, which is, after all, a
    12        principal feature of this case.
    13
    14        But apart from those two occasions, both of which have been
    15        pleaded, we do not make any claim that the leaflet
    16        complained of was distributed by or on behalf of the
    17        Defendants after the date of the issue of the writ.  One
    18        very good reason for that is that, so far as we know, apart
    19        from those two occasions, the group ceased distribution of
    20        the leaflet complained of following service of the writs.
    21
    22        My Lord, what follows, in our submission, from that is
    23        this, that since the amended defence is a defence of
    24        consent or leave and licence to publication of the words
    25        complained of, events occurring at London Greenpeace
    26        meetings after the issue of the writ, whether or not
    27        inquiry agents were present, have no relevance to the
    28        amended defence, since one cannot be taken to consent to
    29        something which was not then any longer happening.
    30
    31        My Lord, I say one further word about relevance, and I will
    32        move on, if I may, to dominant purpose.  Ms. Steel, in the
    33        middle of her cross-examination this morning, suggested
    34        that notes of occasions when McDonald's was not discussed,
    35        or when neither she nor Mr. Morris were present, might
    36        still be relevant to show what I think she called the
    37        overall picture.  I do not, myself, actually understand
    38        what she means by "the overall picture", and I say that for
    39        this reason.  We are not concerned, and we submit that
    40        your Lordship is not concerned, with the overall nature of
    41        the group's activities.  We are not concerned on our side
    42        of the court, and we do not believe your Lordship should be
    43        concerned -- as I think I said the other day -- with what
    44        other activities the group were interested in, what else it
    45        did.  We are not even concerned, through 1990, with what
    46        proportion of the group's activity was devoted to
    47        McDonald's.  The only issue with which we believe this case
    48        is concerned is the extent (if any) to which the McDonald's
    49        campaign was continuing up to the date of the issue of the
    50        writs, and, if it was, even to some small extent, to what 
    51        extent it could ever be said that the Plaintiffs had 
    52        consented to that continuation, in so far as that 
    53        continuation involved the continued distribution of the
    54        leaflet complained of.
    55
    56   MR. JUSTICE BELL:  Just pause a moment.  (Pause)
    57
    58   MR. RAMPTON:  Of course, if there were other occasions on which
    59        members of the group -- it might be the Defendants, it
    60        might be some other regular attender -- occasions, that is

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