Day 057 - 29 Nov 94 - Page 53


     
     1        recall any instances right now, other than early in the
     2        case when we were arguing about statistics.
     3
     4   MR. JUSTICE BELL:  What I am suggesting to you, your point about
     5        you not being able to prove it was true for lack of a
     6        witness or something, is surely subsumed in the question of
     7        belief, or that is what you are going to argue.  If it
     8        turns out that there is not evidence that something is
     9        true, you are going to say, "Well, OK, we have not been
    10        able to prove it was true, but we believed it was true
    11        because we accepted what appeared in 'Jungle Burger'" --
    12        may be you will establish statements in "Jungle Burger" but
    13        let us take it as an example.  Suppose some of the things
    14        in "Jungle Burger" were not supported by admissible
    15        evidence, so I thought that I had to find that that
    16        statement had not been proved, you would be saying to me:
    17        "Well, nevertheless I believed it was true."  If you say
    18        something which you believed to be true, that is, you would
    19        say, not a lie.
    20
    21        The whole question of whether you have been able to prove
    22        it or not is lost, is it not, in the consideration of what
    23        you believed to be true?  You may be in a strong position
    24        on that, I do not know.
    25
    26   MS. STEEL:  It is not as simple as that because the Plaintiffs
    27        are asserting that these are lies.  Therefore, they have to
    28        prove that these are lies or prove that we have been just
    29        totally and utterly ridiculously reckless or whatever.  If
    30        they are pleading here that everything that is in our
    31        pleadings is not true, then they should have to prove
    32        that.  This comes up because Mr. Rampton has said -----
    33
    34   MR. JUSTICE BELL:  You have your argument about proof or not,
    35        you know at the moment what my reaction to that is, but
    36        what has that to do with the actual pleading of the Defence
    37        to Counterclaim?  You do not have evidence in a pleading.
    38
    39   MS. STEEL:  The only reason I brought that up was because I was
    40        not sure what they were saying there.  I do not think it is
    41        that clear whether they are meaning -- if they want to say
    42        that that means the entire pleadings, then that is OK, that
    43        is the end of that particular question at the moment.
    44
    45   MR. JUSTICE BELL:  I will hear Mr. Atkinson on that.  I had
    46        taken that to be an assurance to you that they were not
    47        going to go outside those matters which are otherwise
    48        issues in the case.
    49
    50   MS. STEEL:  Yes, but, as I say, I am not sure whether they mean 
    51        issues as in the issues set out in the Statement of Claim, 
    52        or whether they mean the issues set out in the entire 
    53        defence pleadings.  It is quite a simple matter of
    54        clarification really.  There is not any complex there; they
    55        can give a two-word answer to that.
    56
    57   MS. STEEL:  The other thing I wanted to bring up which is not
    58        strictly speaking about Further and Better Particulars but
    59        it is something we are very concerned about, which is that
    60        at the top of page 11 you will see the 4th line down says:

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