Day 310 - 04 Dec 96 - Page 33


     
     1        environment/index.html">litter allegation in that array of charges is trivial.  On
     2        the other hand, if destruction of the rainforest on a vast
     3        scale were proved and/or causing starvation in the Third
     4        World succeeded by way of justification, then the fact that
     5        environment/index.html">litter failed, or not telling the truth about recycled
     6        content, would not help me at all.
     7
     8   MR. JUSTICE BELL:  No.
     9
    10   MR. RAMPTON:   That would be a classic section 5 defence.
    11
    12   MR JUSTICE BELL:   Notwithstanding what you have said about
    13        section 6, I would just like to think about that for the
    14        moment.  (Pause)
    15
    16        Is not all that section 6, does not all section 6 say:
    17        suppose you have five defamatory allegations of fact -- it
    18        is a combination of section 5 and section 6, as section 5
    19        has been interpreted -- suppose you have five defamatory
    20        allegations of fact all in the same immediate area, related
    21        to some extent to each other, and then, at the end of that,
    22        you express an opinion in defamatory terms.  You are
    23        entitled to succeed on the defence of fair comment in
    24        relation to the last defamatory allegation, the defamatory
    25        opinion, if you only succeed on justifying some of the
    26        defamatory statements of fact, provided they are enough for
    27        a fair-minded person to have reached the defamatory view
    28        which is expressed at the end of the day.
    29
    30   MR. RAMPTON:   That is right.
    31
    32   MR JUSTICE BELL:  But the Plaintiff can still say: "Well, I have
    33        been defamed in the other statements of fact which have not
    34        been justified, and I am entitled for damages (if they are
    35        worth anything) in relation to those."
    36
    37   MR. RAMPTON:   Oh, absolutely.  I mean, the defence of fair
    38        comment is necessarily confined to comments.  As
    39        Mr Atkinson has put into our submission at one stage, the
    40        defence to defamatory allegations of fact, even if they are
    41        used as a foundation for a defamatory comment, must only be
    42        justification.  In the situation that your Lordship has
    43        just described, the defendant would probably do rather
    44        badly.
    45
    46        My Lord, the reference in the written submissions is (g) at
    47        the top of page 7.
    48
    49   MR. JUSTICE BELL:   Yes.  I still find it difficult to
    50        understand the bottom of page 1,033, but that does not 
    51        matter because I can forget it, can I? 
    52 
    53   MR. RAMPTON:   Anyway, they were not asked to think about
    54        section 6, so it could be regarded as obiter.
    55
    56   MR JUSTICE BELL:  It would not have been binding anyway.
    57
    58   MR. RAMPTON:  No.
    59
    60   MR. JUSTICE BELL:   What I propose, subject to a little

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