Day 052 - 21 Nov 94 - Page 55


     
     1        what the Plaintiffs' case was for a very considerable
     2        period of time, I mean more than a year, which makes the
     3        idea they were misled by the Statement of Claim, with
     4        respect, slightly ludicrous.
     5
     6        Nevertheless, they are now in the position that they know,
     7        if they think about it, where the evidence does or, if one
     8        puts it like this, does not lead.  They are now in a
     9        position to say precisely what they mean by "link" or
    10        "relationship" or "association" or whatever.  In my
    11        respectful submission, now is the time to say it.  Apart
    12        from anything else, it may affect both the need for and, if
    13        there is a need, the way in which further cross-examination
    14        of Professor Crawford or Dr. Arnott goes.
    15
    16   MR. JUSTICE BELL:  Again so it is clear, if at the end of the
    17        day I were to think that the leaflet in this respect had
    18        some middle of the road meaning such as the one I canvassed
    19        a moment ago, then that would be covered by your pleading
    20        if you were allowed to amend, because your meaning is, for
    21        want of a better word at the moment, stronger than that
    22        meaning.  It is not lesser than; it is stronger than.
    23
    24   MR. RAMPTON:  It is stronger than.  As I said, it is at the top
    25        of the scale.  By reason of what the Court of Appeal
    26        decided in Slim v. The Daily Telegraph which I will not
    27        bother your Lordship with now, which is also in that little
    28        bundle of authorities, the defendant must necessarily be
    29        allowed to try to justify any meaning from the meaning
    30        pleaded by the plaintiff downwards.  He cannot justify more
    31        injurious meaning because the plaintiff is not allowed to
    32        get damages for more injurious meaning than he has
    33        pleaded.  But that means that the Defendants ought to be
    34        thinking -- and this really makes me somewhat uncomfortable
    35        because it is intended to help them, through your
    36        Lordship -- is whether they try to justify the meaning
    37        raised by the new amendment, assuming that leave were
    38        given, which I doubt, but assuming it were, or some lesser
    39        meaning along the lines which your Lordship has suggested,
    40        bearing in mind that it may be at the end of the case your
    41        Lordship will decide that the meaning we now raise is too
    42        strong, and that the words bear some lesser meaning which
    43        might be true.
    44
    45        But I repeat, I do believe and do submit that the time has
    46        now come where the Defendants must stop, as it were,
    47        picking flowers and concentrate on what they think their
    48        case actually is in the light of evidence given so far.
    49        I will not be content, unless your Lordship tells me I must
    50        be, with some sort of shilly-shallying word like 
    51        "relationship" "association" or "link". 
    52 
    53        My Lord, I do not know there is anything else I should say
    54        just now.  I would add this, that it is very important
    55        (perhaps I am speaking out of turn), having regard to what
    56        one might call "the hereafter", that the Defendants have
    57        been encouraged, perhaps ordered, to advance their best
    58        case on the evidence as they see it.  I will put it like
    59        that perhaps.
    60

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