Day 311 - 06 Dec 96 - Page 39


     
     1        when they have attempted to damage McDonald's by generating
     2        adverse publicity, for example, and one's mind has become
     3        increasingly convinced that McDonald's itself is only a
     4        target by accident, that they have some ulterior or hidden
     5        agenda which includes smashing McDonald's -- what it might
     6        be, I do not know -- but to which the actual truth of the
     7        allegations in the leaflet is a subsidiary consideration.
     8
     9        My Lord, it is for that reason that we place -- and I say
    10        this, or let me say -- particular emphasis on what
    11        Lord Esher said in The Royal Aquarium v. Parkinson, in that
    12        passage set out on page 8.
    13
    14   MR. JUSTICE BELL:  I remember that.
    15
    16   MR. RAMPTON:  I say that -----
    17
    18   MR. JUSTICE BELL: I have that very much in mind.  It is not
    19        conclusive.  It may be very persuasive, and it is a matter
    20        one has to take into -----
    21
    22   MR. RAMPTON:  I recommend your Lordship to look at the way in
    23        which this case (which was approved) was dealt with by
    24        Lord Diplock in Horrocks v. Lowe.  I think the reference is
    25         -----
    26
    27   MR. JUSTICE BELL:  He is rather stronger than the Aquarium case,
    28        is he not?  If you took what Lord Diplock said strictly,
    29        malice would follow the making of statements which you knew
    30        to be untrue.
    31
    32   MR. RAMPTON:  My Lord, I agree, if I were selective about
    33        Lord Diplock's speech in that case -- and I think his was
    34        the opinion of the whole House -- I could say that it was
    35        stronger.  But one has to be fair about it.  Really, there
    36        is no distinction of principle between the Royal Aquarium
    37        case and Horrocks v. Lowe.  It is always a question of fact
    38        and degree in each case for the jury, or the judge if there
    39        is not a jury:  what do they really feel in their bones was
    40        the defendant's principal motive for these publications?
    41
    42   MR. JUSTICE BELL:  Yes.
    43
    44   MR. RAMPTON:  I really cannot push it any further than that.  Of
    45        course they have to look at the evidence; they cannot close
    46        their eyes to the evidence.  If the conclusion is -----
    47
    48   MR. JUSTICE BELL:  That is why I asked the very first question
    49        I did.
    50 
    51   MR. RAMPTON:  Yes. 
    52 
    53   MR. JUSTICE BELL:  If it is a mixture of genuine feeling for
    54        animals and employees, on the one hand, but a genuine, very
    55        strong distaste for McDonald's themselves for -- let us
    56        suppose, for the purpose of posing the question --
    57        illegitimate reasons ---
    58
    59   MR. RAMPTON:  Yes, exactly.
    60

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