Day 313 - 13 Dec 96 - Page 37


     
     1        because the Plaintiffs are trying to infer the matters
     2        related in paragraph 1 about particular leaflets being used
     3        held against us, it is clear from the face of the leaflets
     4        that the motive behind the campaign was genuine and
     5        specifically.  It is clear from our conduct in court and
     6        from the fact that we put ourselves through this epic legal
     7        battle that we have a genuine belief in the criticisms made
     8        in the fact sheet, and that that is our motivation for
     9        fighting the case and my motivation for distributing A5
    10        anti-McDonald's leaflets, and my motivation for attendance
    11        at the picket of McDonald's Head Office on 16th October
    12        1989.  And, of course, for the subsequent pickets as well.
    13
    14        4: the above quote from Lord Diplock, in particular the
    15        parts emphasised, that is, in relation to being indignant
    16        at what someone believes to be the Corporation's conduct
    17        and welcoming the opportunity of exposing it, should also
    18        be taken into account when considering the Plaintiffs'
    19        assertion that express malice can be assumed from, (A)
    20        continued distribution of similar leaflets after the
    21        service of writs, (B) press releases and media interviews
    22        asserting that the leaflet complained of is true and/or
    23        drawing attention to evidence and legal matters aired
    24        during the course of the trial and pretrial hearings.
    25
    26        Obviously, they are all things that are alleged by the
    27        Plaintiffs as showing signs we were motivated by malice,
    28        and we would say it is clear from what Lord Diplock says
    29        that that simply cannot be correct.
    30
    31        5: the Plaintiffs have argued that express malice can be
    32        assumed because the Defendants have persisted in the plea
    33        of justification despite an "invitation" enclosed with the
    34        writs to apologise.  This argument can safely be ignored
    35        since it is clear from the evidence that the Defendants
    36        persisted in the plea of justification because they
    37        believed the leaflet to be true, and on this very point
    38        Lord Diplock states in the same case at page 152 D:  "A
    39        refusal to apologise is at best but tenuous evidence of
    40        malice for it is consistent with a continuing belief in the
    41        truth of what one has said".
    42
    43        6: the Plaintiffs also assert that it can be assumed that
    44        the Defendants are motivated by express malice because
    45        during the course of the trial they have made accusations
    46        that the Plaintiffs' witnesses are not telling the truth or
    47        that their evidence was compromised by their financial
    48        dependence on McDonald's and loyalty to the Company.  In
    49        any instance where this has occurred this is, in fact,
    50        similarly consistent with a continuing belief in the truth
    51        of the fact sheet.
    52
    53        7: when considering the question of whether or not the
    54        Defendants believed the fact sheet to be true, the overall
    55        messages conveyed by the fact sheet should be considered
    56        rather than a detailed analysis of each particular
    57        sentence.  The court should bear in mind that people do
    58        not, even when handing out leaflets, generally analyse
    59        every word and turn of phrase to determine its strict legal
    60        construction -- I missed out the word 'legal' from the

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