Day 263 - 14 Jun 96 - Page 20
1 occasions, as well. Basically, we are alleged to be
2 responsible for all distribution after that date; and, yes,
3 there is the anti-McDonald's -- sorry -- the
4 London Greenpeace fair in 1990, as well.
5
6 MR. JUSTICE BELL: I understand the way you are putting it. If
7 you are right about relevance, I do not want you to argue
8 about privilege and waiver of privilege in relation to
9 that, because the same arguments would apply to
10 post-September 1990 to pre-September 1990.
11
12 MS. STEEL: OK. If I just say -----
13
14 MR. JUSTICE BELL: If you were right that it were relevant, then
15 the same arguments would apply. I would have to decide
16 whether it was privileged, even though relevant, and then
17 I would have to look and see if there was anything which
18 amounted to a waiver.
19
20 MS. STEEL: Right. Just as a final point on this matter, in the
21 voluntary particulars of the defence to counterclaim, the
22 Plaintiffs set out a whole list of dates in addition to the
23 ones that have already been set out, and those dates start
24 from 5th February 1991; and bear in mind that we have said
25 that Michelle Hooker was still involved in
26 London Greenpeace until May 1991, they set out a whole list
27 of dates when they say anti-McDonald's leaflets have been
28 published. On page 16 of their pleadings, at paragraph 10,
29 they say:
30
31 "The Plaintiffs rely upon all the material referred to
32 herein and served herewith in relation to the following
33 issues: (a) the claim that the Defendants published the
34 words complained of in the main action; (b) the claim for
35 an injunction in the main action; and (c) the issue of the
36 Defendants' malice in respect of the matters complained of
37 in the main action."
38
39 So, clearly, they are viewing that the publication of any
40 anti-McDonald's leaflet after the service of writs is to be
41 taken into consideration. Their view is that it is
42 relevant in terms of proving the issues in the main
43 action. Of course, if they are willing to now withdraw
44 that, then that will be fine by us.
45
46 MR. MORRIS: If they are not willing to withdraw it, we would
47 say that all the post-1990 things we have asked for are
48 clearly relevant.
49
50 MS. STEEL: Just a final point about the post-1990 events or
51 post-writs. Just that consent -- I mean, you may find that
52 consent is about a particular occasion, what happened on
53 one particular day, whether there was consent for each
54 individual day. But we are entitled to argue that it is
55 the wider overall picture, and that if they consented to it
56 on several occasions over a period of two years, then they
57 have consented to it on all occasions when it has been
58 distributed other those two years; and, obviously, it would
59 be relevant to that as well, the notes would be relevant to
60 that as well.
