Day 311 - 06 Dec 96 - Page 40


     
     1   MR. JUSTICE BELL: -- that is not enough for malice, is it?
     2
     3   MR. RAMPTON:  No.  You have to decide where the balance lies.
     4
     5   MR. JUSTICE BELL: It is not just balance.  I have to
     6        decide -----
     7
     8   MR. RAMPTON:  Between those two considerations, you have to
     9        decide which is the stronger.
    10
    11   MR. JUSTICE BELL:  Is that enough?  So long as one is a motive
    12        of some substance, even though the other is stronger, that
    13        is not enough for malice, is it?
    14
    15   MR. RAMPTON:  Oh, yes, it is, because then the other one, the
    16        bad one, is the dominant one.
    17
    18   MR. JUSTICE BELL:  Well, this is really why I asked.  You just
    19        say, sole or dominant is enough.
    20
    21   MR. RAMPTON:  Yes.  That is precisely what Lord Diplock says in
    22        Horrocks v. Lowe.
    23
    24   MR. JUSTICE BELL:  Yes.
    25
    26   MR. RAMPTON:  I do not say it has to be the sole motive.
    27        I never said that it was.  But I do say that it is the
    28        dominant one, on all the evidence.
    29
    30        My Lord, I do not know if there are any particular points
    31        in malice.  There are, as I said, just a couple of
    32        important points I want to add to it in due course, when it
    33        is convenient.
    34
    35   MR. JUSTICE BELL:  It is quite clear that the test -- I mean,
    36        obviously its application may be very different, because of
    37        the different circumstances -- but the test of malice is
    38        the same for rebutting a defence of qualified privilege and
    39        for getting rid of fair comment, is it not?
    40
    41   MR. RAMPTON:  Yes; it must be the same.  There is not any direct
    42        evidence, following Horrocks v. Lowe, about how you apply
    43        malice in fair comment, but it must be this, that the
    44        defendant's desire to express his honest opinion on a
    45        matter of public interest was not the dominant motive for
    46        the publication, but that something else, ulterior and
    47        improper, was.
    48
    49        My Lord, Mr. Atkinson says I should ask your Lordship in
    50        due course -- not now -- to look at paragraph 17.10. 
    51 
    52   MR. JUSTICE BELL:  Yes, I have read that.  Thank you very much. 
    53
    54   MR. RAMPTON:  And 17.18.  What one gets from Horrocks v. Lowe is
    55        this -- if I can just sum it up --  if it be shown that the
    56        libel contains injurious statements about the plaintiff,
    57        except in the most trivial sense, which the defendant knew
    58        were false or did not believe were true as indifference to
    59        their truth, then it will be inferred, because of its very
    60        inclusion of those statements, that his dominant motive was

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