Day 146 - 03 Jul 95 - Page 38


     
     1        essence, it is those three paragraphs we are wishing the
     2        Defendants to state, all facts and matters relied on in
     3        support of those paragraphs.  It is a short application,
     4        but we do feel that is required.  Certainly we cannot hope
     5        to go about dealing with this matter in terms of any
     6        evidence that we wish to call in rebuttal to that malice
     7        plea without having more detail.  Certainly, in terms of
     8        discovery, we do need to know more of what the Defendants
     9        have in mind on that.
    10
    11        I said I would refer your Lordship to the White Book on
    12        malice.  This is as much for the Defendants' benefit as
    13        anyone else.  It is page 314 of the White Book, Order 18,
    14        rule 12.  My Lord, it is 18/12/14, (46); it is really the
    15        second paragraph which I will read out because the
    16        Defendants do not have the White Book:  "In the publication
    17        of defamatory matter, malice is presumed, but if it is
    18        sought to destroy the defence of fair comment or qualified
    19        privilege by an allegation that the defendant was actuated
    20        by express malice, particulars of the facts and matters
    21        from which such malice is to be inferred must be contained
    22        in the reply".
    23
    24        Then what is, perhaps, a better reference, Order 82, rule
    25        3(3), which is that specifically on defamation.  That
    26        says:  "Where in an action for libel or slander the
    27        plaintiff alleges that the defendant maliciously published
    28        the words or matters complained of, he need not in his
    29        statement of claim give particulars of the facts on which
    30        he relies in support of the allegation of malice, but if
    31        the defendant pleads that any of those words or matters are
    32        fair comment on the matter of public interest or were
    33        published upon a privileged occasion and the plaintiff
    34        intends to allege that the defendant was actuated by
    35        express malice, he must serve a reply giving particulars of
    36        the fact and matters from which the malice is to be
    37        inferred."
    38
    39        That must mean helpful facts and matters.  It cannot just
    40        mean simply reasserting that the other party is malicious
    41        without giving any detail, which is what I say has been
    42        done by the Defendants in their pleading.
    43
    44        So, unless I can assist your Lordship further?
    45
    46   MR. JUSTICE BELL:  No.  The only thing I would like to ask is
    47        what time compass are you envisaging here for both your
    48        applications if I were to make the orders?
    49
    50   MR. ATKINSON:   I had better consult with my leader or I will be 
    51        sacked.  The consensus is that I should seek an order that 
    52        it be done by the end of this term. 
    53
    54   MR. JUSTICE BELL:  Yes.  I am just thinking if we are going to
    55        keep going, running through witnesses, whether that is
    56        realistic or whether I ought to give a date during the
    57        vacation, perhaps allowing the Defendants some time for a
    58        complete break, if they wish to take it, in thinking about
    59        this litigation, and then add on a period of time and have
    60        a date which is however before we resume late in

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