Day 280 - 17 Jul 96 - Page 19
1 The next point is that there would be a real
2 likelihood of the third parties saying, "Well, this is no
3 good. We have got to be allowed to give further evidence
4 on our own behalf and we may well wish to call evidence
5 from other people who support our case. We may wish to ask
6 your Lordship to recall at least Ms. Steel into the box for
7 further cross-examination by the third party's legal
8 representative in order to damage any idea that the spies,
9 the private investigators" -- I am using the terminology of
10 the Defendants -- "the private investigators were
11 consenting, and McDonald's were consenting through them, to
12 publication of the words complained of."
13
14 So, one has a situation -- I will forget pleadings,
15 pleadings might be dispensed with but your Lordship may say
16 that the third parties have a right to put their case to
17 plead. I do not know. It is not for me to speculate on
18 what directions will be given. One has evidence, one has
19 cross-examination, one has legal advice and obviously then
20 one would have submissions by them. All this takes a lot
21 of time.
22
23 And I would just make one point incidentally, though I
24 do not represent the third parties. It is said they are
25 not prejudiced in anyway by this application having not
26 been made earlier. Well, they are, my Lord, because had it
27 been made when it should have been made -- and this is one
28 of my main points, it should have been made at the very
29 latest in March of this year. In March of this year, the
30 Defendants sent to our side their draft amended defence.
31 It must have been at that stage and surely, surely,
32 sometime before that, given that for obvious reasons the
33 Defendants have not got round to doing things until later
34 than they probably would have wished to, it would have been
35 known that this was going to be their case and that, my
36 Lord, was before the publication issue was really gone into
37 and if it had been done at that stage argument would have
38 been had, the third parties could have come here, they
39 might well have been represented at the trial, they might
40 well have then had the opportunity before they actually
41 gave evidence to get legal advice in relation to their own
42 position, though, of course, I am not saying they did not
43 tell the truth any differently from what they did when they
44 actually give evidence, but they might well have said more
45 or said different things in the witness box in and attempt
46 to protect their position.
47
48 So, in other words, there has been prejudice to the
49 third parties in that respect. I make one further point on
50 that, and I have discussed this with my learned friend. I
51 am not quite sure whether he is still relying on it as a
52 point, but he refers to section 1(5) of the Civil Liability
53 Contribution Act, and saying that were there to be
54 contribution proceedings the third parties would be in a
55 worse position than if there were third party proceedings
56 because they would in some way be bound by things said in
57 any judgment in this action. I have looked at it and I
58 must say it took me about ten minutes to understand the
59 particular section, but, having looked at it, it does not
60 actually, in my submission, say what my learned friend says
