Day 311 - 06 Dec 96 - Page 48
1 get, whatever it is -- it is a penny nowadays, I suppose --
2 the smallest currency damages.
3
4 MR. RAMPTON: It would plainly be a penny. But, I mean, I feel
5 like saying what judges often say to me: but I am not
6 interested in hypothetical scenarios.
7
8 MR. JUSTICE BELL: I understand that.
9
10 MR. RAMPTON: I think if your Lordship were to conclude (a) that
11 that was a defamatory statement, (b) that it is untrue,,
12 which is what I am coming to in a moment, (c) that there
13 was no reasonable foundation for it, (d) that that led to a
14 conclusion that McDonald's dominant motive for the
15 publication of this responsive material was malicious, then
16 the answer would be a penny.
17
18 MR. JUSTICE BELL: Yes.
19
20 MR. RAMPTON: I am sorry, that is not right. The answer would
21 be a penny, simply because, as your Lordship has rightly
22 pointed out, if it be your conclusion, the fact that it
23 would not have made a blind bit of difference means that
24 the impact of the accusation, that particular accusation
25 which happens to be untrue, is minimal.
26
27 MR. JUSTICE BELL: Yes. Were you going to say something else?
28
29 MR. RAMPTON: I am. I am grateful to Mrs. Brinley-Codd for that
30 passage, because that founds, at least on this belief that
31 in the mind of whoever it was that wrote the responsive
32 material, that the Defendants were immune to reason. They
33 got written to; they say they wrote back and said, "You go
34 to hell, we are just going to go on publishing this
35 material." That is number 1.
36
37 But number 2 is what happened in 1990. On that occasion,
38 which was four years before the responsive material was
39 written, the Defendants got a writ, true, but they also got
40 a letter -- and the date is the same as the writ,
41 20th September 1990 -- in which complaint was made about
42 the leaflet complained of and in which the following were
43 asked for: an undertaking not to repeat the allegations, a
44 statement in open court, and payment of McDonald's costs to
45 that date, which would have been a few pounds.
46
47 Following that, in the very next paragraph of the letter,
48 Barlow Lyde & Gilbert wrote: "If you will agree to these
49 proposals within 14 days, we shall not claim any damages.
50 We will waive our right to damages."
51
52 One might ask: what would have been the reasonable
53 person's, the fair minded, honest person's response to the
54 such a letter in the particular circumstances of this case?
55
56 I will, if I may, propose an answer: "Thank you for your
57 letter. You are quite right that there are important parts
58 of this leaflet which are wrong, and we owe you an apology
59 for having put them in circulation. There are other parts
60 where it looks as though we must agree to differ. But I am
