Day 310 - 04 Dec 96 - Page 31
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2 MR. RAMPTON: In both publication and malice, your Lordship
3 will see that I have made reference to the future threat --
4 at any rate, in malice -- the future threat of
5 publication. I have given your Lordship references in
6 documents. I have not actually said: "And this bears on
7 the question of an injunction", but plainly it does.
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9 MR. JUSTICE BELL: The other matter, again, which I thought
10 I would probably find when I got to your comments in
11 relation to the counterclaim -- it is on page 9 of your
12 legal submissions -- is failure to retract as evidence of
13 malice; and that is best left until I have read what you
14 said, is it?
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16 MR. RAMPTON: It is, my Lord. I have given your Lordship the
17 references in Gatley. There is quite a lot of authority
18 about it. There are circumstances, of course, in which a
19 failure to retract is no evidence of malice at all. It
20 depends on the facts of each case. In other cases, where
21 the truth stares the Defendant in the face and he fails to
22 retract it, it may be very good evidence.
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24 MR. JUSTICE BELL: I think the final matter, subject to any
25 discussion of possible amendment of the counterclaim -----
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27 MR. RAMPTON: Can we leave that till Friday, my Lord? I have
28 not had a chance to think about it.
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30 MR JUSTICE BELL: Yes. (To the Defendants) Do you have
31 anything to say about that? It came into the picture for
32 the first time. What I would propose is that we deal with
33 it first thing on Friday, if that is when we resume, so
34 that when we go on to what Mr. Rampton's submissions are on
35 counterclaim and any reply to it, everyone knows whether
36 I have granted leave or not.
37
38 MS. STEEL: Sorry, did you say deal with it -----
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40 MR. JUSTICE BELL: Hear any argument first thing on Friday
41 morning with regard to your application for leave to
42 amend. It is a matter I would expect to give a judgment on
43 one way or another straightaway, or virtually straightaway,
44 and then everyone would know, but not to deal with it
45 today.
46
47 The final matter I would appreciate some assistance on at
48 this stage is what O'Connor L.J. said in Polly Peck about
49 section 6 of the Act, because I do not understand it.
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51 MR. RAMPTON: My Lord, it is a mistake.
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53 MR. JUSTICE BELL: Can we just have a look?
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55 MR. RAMPTON: If I can take my wig off for a moment and replace
56 it with an academic cap, I would say that the judge made a
57 mistake.
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59 MR. JUSTICE BELL: Well, I find that reassuring, eminent as he
60 was. I forget which section of your list of authorities
