Day 304 - 22 Nov 96 - Page 20
1 proven, about it being heard at the end, which may have
2 been an invitation to the Plaintiffs to move publication
3 further up the agenda. I think what is important is that
4 we feel that you should not be under any pressure not to
5 find for us on publication because it does seem the whole
6 trial has been absurd if we win on publication, and that
7 may reflect on how things have gone generally because we do
8 not consider it to be any reflection on you but, rather,
9 the way things fell into place, largely because of the
10 Plaintiffs', you know, programme for the evidence, and at
11 that time it was going to be a twelve week trial. So,
12 I think that was something we felt we wanted to say.
13
14 MR. JUSTICE BELL: Yes, very well.
15
16 MR. MORRIS: I mean, obviously, you have some difficult
17 decisions to make in this case and, hopefully, they will be
18 the right ones. Hopefully, they will be in our favour.
19
20 MR. JUSTICE BELL: Yes. I do not see myself succumbing to the
21 pressure. It is a perfectly valid point for you to make.
22
23 MR. MORRIS: Right. I was trying to put it as diplomatically
24 as I could. The other thing I wanted to say is about the
25 burden of proof, and we have heard that the burden of
26 proof, balance of probabilities -- sorry, the burden and
27 the balance -- the burden is the Plaintiffs' in this part
28 of the case and the balance of probabilities, because of
29 the seriousness of the consequences of this decision, the
30 Plaintiffs' burden of proof must be high to show that their
31 case has been proven on publication. I mean, it is
32 virtually akin to a criminal act where-----
33
34 MR JUSTICE BELL: I do not accept that, I am afraid.
35
36 MR. MORRIS: I mean, in terms of the consequences it is.
37
38 MR. JUSTICE BELL: Anyway, that is not what the authorities say
39 to me. There is lot of misunderstanding about this
40 variable standard of proof. If one reads the authorities,
41 all they really say is the more serious the behaviour is
42 alleged to be, and therefore the more unlikely it would be
43 in the normal way of things that it would be performed, the
44 stronger must be the evidence to outweigh that
45 unlikelihood. That is all the authorities say. It was a
46 very good example the case where what was at stake was
47 whether a woman had feloniously killed her husband where
48 they were both found dead of coal gas poisoning. It really
49 was no more than common sense, as someone said in a later
50 case. It is very unusual, happily, and it is very unlikely
51 that a woman will kill her husband in that way. The
52 inherent likelihood is that she will not.
53
54 So, a greater degree of proof is, in ordinary common sense,
55 required before a judge will say, "Well, I find that she
56 did kill her husband in that way". But there is no doubt
57 that, subject to any case you put before me which is not on
58 Mr. Rampton's list of cases, in libel the standard of proof
59 is the civil standard, not the criminal standard.
60
