Day 253 - 21 May 96 - Page 35
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2 MS. STEEL: I would need a bit of extra time to sort them out.
3 There are a couple other things to mention which do not
4 have to be dealt with right now. The first one is Jane
5 Brophy. Because she has had to take a lot of time off work
6 looking after her children she would prefer to be
7 subpoenaed. If you remember, you were suggesting that we
8 should subpoena them. I wanted to ask about that. The
9 other thing that I wanted to raise was just that
10 Mr. Rampton said this thing about he cannot attribute
11 malice to a company. We have not had time to get legal
12 advice on that and to find all the relevant law on it. But
13 if that is an objection that is going to continue being
14 taken, then it may be the simplest thing if we add four
15 names to our pleadings.
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17 MR. RAMPTON: Can I try and explain this?
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19 MS. STEEL: And just make that amendment, because it may save
20 time.
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22 MR. JUSTICE BELL: Let us hear what Mr. Rampton has to say.
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24 MR. RAMPTON: It is not a question of pleading at all, really,
25 although pleadings usually follow the principle. The
26 principle is, as your Lordship knows, that a company cannot
27 have a subjective intention of any kind, it has no state of
28 mind except through its servants and agents. Sometimes it
29 is directing mind if it is the board of directors and it is
30 an appropriate case, but as a legal entity it has no mind
31 of its own. It therefore cannot be of itself, it cannot
32 have a malicious intention, it cannot be held to be
33 malicious. That means that the party who alleges malice
34 against a company must prove -- and it can by inference of
35 course -- on the balance of probabilities to the
36 satisfaction of the court that one or more of the servants
37 or agents of the company who were responsible for the
38 publication complained of had a malicious state of mind.
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40 In the normal way, taking a newspaper case, if the reporter
41 is malicious then the publishing company will be
42 vicariously liable for the malice; not, however, the editor
43 because he is not the principal or master of the
44 journalist. In the normal case, therefore, in a pleading
45 the Plaintiffs' counsel in the reply will be careful to
46 identify that individual, or those individuals, on behalf
47 of the newspaper company who he says possessed the
48 malicious state of mind.
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50 So far as the Defendants' pleading is concerned, really
51 I am not much worried one way or the other. What I said
52 was intended to alert them to this, and I did it, of
53 course, through your Lordship, which I probably did not
54 need to do but I did: they need to identify to your
55 Lordship's satisfaction, and, of course, I need to have
56 notice of it, which is what the pleading is for, who they
57 say were the persons concerned with the distribution, which
58 is the subject of the counterclaim, who are malicious.
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60 MR. JUSTICE BELL: Is it sufficient for your purposes if they do
