Day 146 - 03 Jul 95 - Page 36


     
     1        stage, in my submission, to abide by their obligation on
     2        discovery and to give such documents as, in their opinion,
     3        are in their possession, custody or control.  If necessary,
     4        there will have to be a further argument as to whether they
     5        are or are not in their possession, custody or control.
     6
     7        The only thing I would say is that one has heard from the
     8        Defendants often that the mere fact that the Plaintiffs do
     9        not have something immediately in their possession is not a
    10        reason necessarily for saying that it is not within their
    11        power or control to get hold of, and that is just a flier
    12        for any future argument.
    13
    14        So, in essence, my Lord, I have gone through the letter of
    15        3rd February.  There is nothing more save for those extra
    16        things about cheque books etc. that I want to add in
    17        relation to the application for discovery.
    18
    19        If I can now go on to, unless your Lordship has any
    20        point----
    21
    22   MR. JUSTICE BELL:  No, thank you.
    23
    24   MR. ATKINSON:  -- to the second application which, I hope, will
    25        be a little briefer, having said I will be short.
    26
    27   MR. JUSTICE BELL:  That is No. 5, is it?
    28
    29   MR. ATKINSON:   I think, yes, I have not got the agenda with me.
    30
    31   MR. JUSTICE BELL:  Further and better particulars of the reply.
    32
    33   MR. ATKINSON:   That is right, my Lord.  There was a request for
    34        further and better particulars of the reply to the defence
    35        to counterclaim.  Now, the reply to the defence to
    36        counterclaim will be, I hope, in your Lordship's
    37        counterclaim file.  It is in the one Mrs. Brinley-Codd
    38        handed up apparently.
    39
    40   MR. JUSTICE BELL:  Yes, tab 5.
    41
    42   MR. ATKINSON:   It comes towards the end.  It is dated 6th March
    43        1995.  If your Lordship just reads that, it does not
    44        actually take very long to read.
    45
    46   MR. JUSTICE BELL:  Yes.
    47
    48   MR. ATKINSON:   One can see there, the relevance of this reply
    49        is, presumably, because we have a defence of qualified
    50        privilege.  It has been put in to counter what might be 
    51        thought to be a firm plea of qualified privilege, so it is 
    52        important for the Defendants to have this plea on the 
    53        record.
    54
    55        However, when one actually looks at it, and bearing in mind
    56        the requirement that if you are pleading a malice against
    57        somebody -- and I will refer your Lordship to the White
    58        Book on this in a moment -- but bearing in mind that one
    59        does have to give full particulars on which one bases the
    60        contention that someone has acted with actual malice, it

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