Day 307 - 27 Nov 96 - Page 52
1 response, was it a legitimate one?
2
3 MR. MORRIS: Yes, sorry. Yes. I am not organising this in
4 such a way where-----
5
6 MR. JUSTICE BELL: I am just breaking it down so I understand it
7 for my own purposes.
8
9 MR. MORRIS: I mean, first of all, there was no attack.
10 Secondly, there was no attack by us. Thirdly, that, if
11 there was, this was not a response in any event. This was
12 a clearly an autonomous attack on our character on the eve
13 of trial.
14
15 Thirdly or fourthly, whatever, is the document a legitimate
16 document? First of all, we have to look at the character
17 of the document, and if it was going to be a response it
18 has to be a response presumably in kind. If someone
19 punches you in the street you have to the right to punch
20 them back, you do not have a right to shoot them dead.
21
22 MR. JUSTICE BELL: At the moment the question seems to me to be
23 this: you have said there was no attack; there was no
24 response to an attack by us. So what you are going on to
25 now can only be just on the hypothesis that you are wrong
26 about that, that there was an attack and ---
27
28 MR. MORRIS: Yes.
29
30 MR. JUSTICE BELL: -- that there was a response, and it seems to
31 me, then, there are two questions: Firstly, was what was
32 said the defamatory words? Were they relevant to the
33 attack? If they were not, the matter stops there. If they
34 are relevant to the attack, or could be said to be relevant
35 to the attack -- and you have obviously got to address me
36 on the basis that I might find that they were -- then were
37 they, nevertheless, delivered? Was the response delivered
38 with express malice? But there are two separate issues
39 there: Was what was said relevant -----
40
41 MR. MORRIS: And correct, in fact, and correct. That is
42 another matter.
43
44 MR. JUSTICE BELL: That is another matter entirely. That is a
45 question of justification.
46
47 MR. MORRIS: Right. OK.
48
49 MR. JUSTICE BELL: But was what was said relevant to the attack,
50 and you can say anything you want to me about that, and
51 then, making all the assumptions against you just so we can
52 further the argument, if you are wrong about all these
53 things, nevertheless was there express malice?
54
55 MR. MORRIS: Yes. I think all of these points go to malice
56 anyway, because -----
57
58 MR. JUSTICE BELL: They may very well do, but it is easier for
59 me to understand your submissions if you keep it in that
60 order.
