Day 307 - 27 Nov 96 - Page 55
1 be an answer just that one could have said it in different
2 terms, because this situation only arises where the
3 allegation -- not only, but normally -- it seems to me,
4 having looked at the cases, arises where the person who is
5 defendant to the claim of libel, as McDonald's are to your
6 claim of libel in the counterclaim, has gone over the top
7 to the extent of saying something which is untrue, when
8 they might well have defended themselves in more moderate
9 tones by saying something which was true or at least which
10 they clearly believed. But what I am saying does not put
11 you down. You say there is a gratuitous insult here which
12 was quite unnecessary and that they could have only had
13 actual malice in order to go as far as saying it was lies.
14
15 MR. MORRIS: Yes, OK.
16
17 MS. STEEL: We were not disagreeing that it did go to malice.
18
19 MR. JUSTICE BELL: No. When I interject like this, it is as
20 much to clear my own mind and to make sure I have not
21 missed some particular extra point which you are seeking to
22 make.
23
24 MR. MORRIS: Yes. I mean, you know, I have to use common sense
25 a lot of the time, but it seems to me that if the law is
26 going to allow a waiver of its normal course of law on
27 libel to allow privileged self-defence, that has to be
28 hedged with a lot of "ifs", "buts" and "maybes" and "only
29 in certain circumstances", and the character of the
30 material that is being produced, obviously, has got to be
31 justified as a response to something. So, if someone calls
32 you a child murderer, then, obviously, you would be
33 entitled to say something back equivalent as strong as
34 that. But if someone says, you know, that you have got a
35 bad taste in interior design, you are not entitled to, you
36 know, respond by saying they are a Nazi child murderer, or
37 something.
38
39 MR. JUSTICE BELL: If you do, it might be a short route to
40 saying that was done with express malice rather than with
41 the view of defending yourself against the attack.
42
43 MR. MORRIS: That is fair enough, then.
44
45 MR. JUSTICE BELL: I think this all boils down to what I have
46 just said.
47
48 MR. MORRIS: So there is the scale, there is the character,
49 there is the timing, which I have already made the point
50 on, that it is not legitimate because there is nothing that
51 the Plaintiffs have proven that we have done at all, and
52 should they succeed on publication in this case, that will
53 not help at all in terms of this being a response to an
54 attack to the extent that it was an appropriate legitimate
55 response to an attack that had just occurred.
56
57 Can I say that regarding -- yes -- in terms of publication
58 of the fact sheet, the only three examples which have been
59 proven, we would say, since 1990, including 1990, certainly
60 from about March 1990 onwards, are the publication by
