Day 310 - 04 Dec 96 - Page 29


     
     1        fact whether they think it is probative or not.
     2
     3   MR. JUSTICE BELL:   Yes.  The next matter was when I was asking
     4        you about 'justified in substance and fact' you used the
     5        phrase 'very nearly proved'.
     6
     7   MR. RAMPTON:   I said very nearly?
     8
     9   MR. JUSTICE BELL:   Do you remember?
    10
    11   MR. RAMPTON:   Yes.
    12
    13   MR. JUSTICE BELL:   Did that come from a particular authority
    14        where there was some help on that question?
    15
    16   MR. RAMPTON:   No, I think that was just actually rather a loose
    17        way of saying that though you cannot necessarily prove all
    18        the specific facts that you have published, or indeed all
    19        the specific facts you have put into your defence by way of
    20        justification, if the substance of the charge is, on the
    21        evidence, overall, in the opinion of the court, true, then
    22        the defence succeeds.
    23
    24   MR JUSTICE BELL:  It is no magic, it is just a question of
    25        ordinary every day judgment.
    26
    27   MR. RAMPTON:   Absolutely.
    28
    29   MR. JUSTICE BELL:   Then I think this is probably the last
    30        matter for the moment, because I assume that if you are
    31        going to bring the basis for a quia timet injunction, that
    32        will come in with publication or matters related to that?
    33
    34   MR. RAMPTON:   Your Lordship will find in those submissions I
    35        have made no specific reference to the injunction because
    36        I thought that better left until one saw the terms of
    37        judgment, but your Lordship will find all the evidence that
    38        you would need at the end of the case in those two
    39        sections, publication and malice.
    40
    41   MR. JUSTICE BELL:   Yes, the only reason I have raised it, I can
    42        see there are circumstances where an allegation of actual
    43        publication by the Defendants fails but that does not mean
    44        that the action fails, because there could still be basis
    45        for being fearful that if an injunction is not granted
    46        there will be publication in the future.
    47
    48        Now, whether or not that has any realistic application to
    49        this case or not I am not embarking on at the moment.  But
    50        I might need some help on it if it is a fall back position 
    51        for you in this case. 
    52 
    53   MR. RAMPTON:   I had not actually considered it at this stage of
    54        the case.  However, we did do, did we not --?
    55
    56   MS. STEEL:   Before we carry on, can someone just say what a
    57        quia timet injunction is?
    58
    59   MR. JUSTICE BELL:   It means because he is fearful, because you
    60        are fearful.  It has been mentioned on a number of

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