Day 307 - 27 Nov 96 - Page 43


     
     1        reaction?   It has to be a response, a reaction, because
     2        the waiver of normal law -- presumably, the aim of that is
     3        to say, in certain circumstances, people are so overcome
     4        with the attack on their business or on their character
     5        that they react; they do not think about what they are
     6        doing; they react and they may say things which are foolish
     7        which they might regret, so there should be some kind of
     8        privileged self-defence or a need to immediately respond to
     9        something because otherwise, you know, the situation
    10        mushrooms out of control and it is too late.  Somebody
    11        issues damning leaflets about you in your street; you
    12        immediately issue counter leaflets to everybody in the
    13        street.  Otherwise, you know, the whole thing gets out of
    14        hand and the whole country thinks you are a child molester,
    15        and whatever you do in a case in three years' time when it
    16        gets to court to deal with it, it is too late; the cat is
    17        out of the bag.
    18
    19        So, it must be a reaction to a specific attack which you
    20        cannot deal with in any other way, we would say.
    21
    22   MR. JUSTICE BELL:   I do not see any justification for that in
    23        any of the cases.  There may be a number of ways of dealing
    24        with it, but this may be one of them.
    25
    26   MR. MORRIS:   We would submit that it has to be an appropriate
    27        response to an attack that you cannot deal with in a legal
    28        way, in a normal legal way; otherwise, it just becomes an
    29        incitement.
    30
    31   MR. JUSTICE BELL:   I may not be far away from you at all if you
    32        say it has to be appropriate, but to say that it is
    33        inappropriate because one can take legal action completely
    34        avoids the point of being this defence at all.
    35
    36   MR. MORRIS:   All I am saying is  -----
    37
    38   MR. JUSTICE BELL:   Indeed, you just said so yourself that if
    39        someone puts out a leaflet saying you are a child molester,
    40        you may not want to wait to take legal action -- indeed,
    41        you may not want to take expensive legal action at all --
    42        you will want to say loud and clear to everyone who will
    43        listen to you, "No, I am not; he has accused me because he
    44        was doing it himself".  That is the sort of situation where
    45        this privilege arises, as I understand it.
    46
    47   MR. MORRIS:   Yes.  I would say that if there is a way of
    48        dealing with it that is not -- if there is an appropriate
    49        way of dealing with it that is effective, then this defence
    50        cannot be used by the Plaintiffs in this case.  That is 
    51        what I would argue. 
    52 
    53        So, the first question is:  Was this a reaction?   This
    54        clearly, from the evidence that we have heard about the
    55        pre-meetings before these leaflets were issued, was a
    56        result of a process of a number of months of preparation,
    57        carefully crafted, high level -- sorry, carefully crafted
    58        words drafted and drafted over with PR professionals
    59        involved, and that is very important, PR professionals
    60        involved.  This was not a reaction.  This was a PR campaign

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