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
