Day 307 - 27 Nov 96 - Page 55


     
     1        be an answer just that one could have said it in different
     2        terms, because this situation only arises where the
     3        allegation -- not only, but normally -- it seems to me,
     4        having looked at the cases, arises where the person who is
     5        defendant to the claim of libel, as McDonald's are to your
     6        claim of libel in the counterclaim, has gone over the top
     7        to the extent of saying something which is untrue, when
     8        they might well have defended themselves in more moderate
     9        tones by saying something which was true or at least which
    10        they clearly believed.  But what I am saying does not put
    11        you down.  You say there is a gratuitous insult here which
    12        was quite unnecessary and that they could have only had
    13        actual malice in order to go as far as saying it was lies.
    14
    15   MR. MORRIS:   Yes, OK.
    16
    17   MS. STEEL:   We were not disagreeing that it did go to malice.
    18
    19   MR. JUSTICE BELL:   No.  When I interject like this, it is as
    20        much to clear my own mind and to make sure I have not
    21        missed some particular extra point which you are seeking to
    22        make.
    23
    24   MR. MORRIS:   Yes.  I mean, you know, I have to use common sense
    25        a lot of the time, but it seems to me that if the law is
    26        going to allow a waiver of its normal course of law on
    27        libel to allow privileged self-defence, that has to be
    28        hedged with a lot of "ifs", "buts" and "maybes" and "only
    29        in certain circumstances", and the character of the
    30        material that is being produced, obviously, has got to be
    31        justified as a response to something.  So, if someone calls
    32        you a child murderer, then, obviously, you would be
    33        entitled to say something back equivalent as strong as
    34        that.  But if someone says, you know, that you have got a
    35        bad taste in interior design, you are not entitled to, you
    36        know, respond by saying they are a Nazi child murderer, or
    37        something.
    38
    39   MR. JUSTICE BELL:   If you do, it might be a short route to
    40        saying that was done with express malice rather than with
    41        the view of defending yourself against the attack.
    42
    43   MR. MORRIS:   That is fair enough, then.
    44
    45   MR. JUSTICE BELL:   I think this all boils down to what I have
    46        just said.
    47
    48   MR. MORRIS:   So there is the scale, there is the character,
    49        there is the timing, which I have already made the point
    50        on, that it is not legitimate because there is nothing that 
    51        the Plaintiffs have proven that we have done at all, and 
    52        should they succeed on publication in this case, that will 
    53        not help at all in terms of this being a response to an
    54        attack to the extent that it was an appropriate legitimate
    55        response to an attack that had just occurred.
    56
    57        Can I say that regarding -- yes -- in terms of publication
    58        of the fact sheet, the only three examples which have been
    59        proven, we would say, since 1990, including 1990, certainly
    60        from about March 1990 onwards, are the publication by

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