Day 310 - 04 Dec 96 - Page 12


     
     1        the Defendants are entitled to rely upon the health and
     2        safety part of their case.
     3
     4   MR. RAMPTON:   Yes.
     5
     6   MR. JUSTICE BELL:   What if it were comment?
     7
     8   MR. RAMPTON:   I am just wondering whether there is a sufficient
     9        indication in relation to long shifts in hot, smelly and
    10        noisy environments.  I suspect not.  There is not a
    11        reference to health and safety, I would suggest, even by
    12        implication.  The reader would not know that the
    13        commentator had in mind also the health and safety of the
    14        workers.
    15
    16   MR. JUSTICE BELL:   Trying to understand what the essential
    17        principle behind the case is on the point of the defendant,
    18        in support of fair comment, being able to refer to matters
    19        which are set out in the words complained of, or
    20        sufficiently referred to or common knowledge, is the
    21        principle really no more than this?  In support of a
    22        defence of fair comment a defendant can only rely on facts
    23        or matters which the reader will know of or might
    24        reasonably be expected to know of so that he can judge the
    25        comment himself and, obviously, if something is set out in
    26        the leaflet, that is so.
    27
    28   MR. RAMPTON:   He can make up his own mind.
    29
    30   MR. JUSTICE BELL:   If it is sufficiently referred to, that is
    31        so, and if it is a matter of really common knowledge, that
    32        is so.  That is why those three categories are referred to
    33        in cases.  But it all boils down to this:  Has the reader
    34        been given a fair chance to judge for himself whether the
    35        comment is fair or not?
    36
    37   MR. RAMPTON:   That is the whole reason why the defence of fair
    38        comment is so generous to the defendant: because it does
    39        not compel a conclusion in the reader's mind.  The
    40        commentator is free to express his honest opinion on facts
    41        which are available to the reader by one route or another,
    42        so that when it comes to the trial of a libel action the
    43        jury or the judge can say, "Well, I might not agree with
    44        that comment in the light of these facts but the defendant
    45        was free to express that opinion".
    46
    47   MR. JUSTICE BELL:   Yes.
    48
    49   MR. RAMPTON:   Whereas if you have a statement of fact, which I
    50        am bound to say we see these statements here as being, the 
    51        reader does not have that choice.  The conclusion is 
    52        presented for him as truth.  And, in those circumstances, 
    53        the defendant will lose unless the jury or the judge agrees
    54        that he was right.
    55
    56   MR. JUSTICE BELL:   I did find...  I do not know whether I made
    57        a note of it.  Yes, I think it was paragraphs 704 and 705
    58        of Gatley where there was something to the effect that --
    59        Duncan & Neil at paragraph 12.13:  "Any matter which does
    60        not indicate with reasonable clearness that it purports to

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