Day 186 - 10 Nov 95 - Page 40


     
     1
     2   MR. MORRIS:  Yes.  We are not concerned with that in this case.
     3
     4   MR. JUSTICE BELL:  He says that, in his view, it was arguable
     5        and, therefore, a matter for the jury to decide that it did
     6        impute dishonesty.  Lord Curriehill was of the same
     7        opinion, but he did not agree about adulterated bread.  He
     8        said if the charge had been of actually adulterating the
     9        bread, then he would have thought that would be a
    10        defamatory meaning.  But, in this case, unwholesomeness,
    11        actually having bread which might actually be adulterated,
    12        did not impute dishonesty necessarily because that could be
    13        perfectly innocent.  So, he disagreed with the other two
    14        Scottish judges.
    15
    16   MR. MORRIS:  Right.
    17
    18   MR. JUSTICE BELL:  I have to say, I do not find it a terribly
    19        easy case to understand always and I am not at all
    20        confident that the same decision would be made on those
    21        facts today.  But the case which is put against you is that
    22        the words do not necessarily have to impute dishonesty; it
    23        is sufficient if they impute lack of proper care in the
    24        conduct of one's business.
    25
    26   MR. MORRIS:  I just think that is stretching the restrictions on
    27        freedom of speech so far that virtually any article written
    28        questioning a company, you know, is going to be able to be
    29        interpreted in such a way as to lead to a writ.
    30
    31   MR. JUSTICE BELL:  It may be and then the question is whether
    32        the defendant justifies what is said or not ----
    33
    34   MR. MORRIS:  Can I just -----
    35
    36   MR. JUSTICE BELL:  -- or whether it maybe fair comment in which
    37        case the claim fails.
    38
    39   MR. MORRIS:  Yes, on that -----
    40
    41   MR. JUSTICE BELL:  What is the difference between -- you may say
    42        you take it less seriously, but if a doctor could say that
    43        an allegation that he did not examine his patients
    44        properly, which is an allegation of negligence, let us
    45        suppose, that, I would have thought, is clearly
    46        defamatory.  By the same token, is it not defamatory to say
    47        of a company that it does not take proper care in the
    48        products which he produces?
    49
    50   MS. STEEL:   I think people would consider more that it was a 
    51        doctor's duty to examine his patients properly than it 
    52        would to ----- 
    53
    54   MR. JUSTICE BELL:  It depends what the jury make of it, does it
    55        not, but if the meaning were to be that the company had not
    56        taken proper care with the result that their customers
    57        might be adversely affected, is that not defamatory?
    58
    59   MR. MORRIS:  Yes, but that is not care with the food.  The point
    60        is it is the care with their nutrition guides, so the only

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