Day 117 - 27 Apr 95 - Page 32


     
     1        think it is not premature to make it now.
     2
     3        It would not, we submit, be right or fair that we should
     4        have to go to the inconvenience and expense -- the
     5        inconvenience is not just ours but those of the witnesses
     6         -- calling witnesses on a hypothetical or speculative
     7        basis so that the Defendants may have the opportunity of
     8        seeing whether they can make a case by cross-examination,
     9        not knowing -- perhaps one should put it more strongly,
    10        assuming, perhaps, that their witnesses are not going to
    11        attend court.
    12
    13        My Lord, if that is a legitimate consideration of fairness
    14        and justice and it would, therefore, not be right to hear
    15        those witnesses before any witnesses not so far identified
    16        of the Defendants, then it would not (and this is a
    17        consequence, an important consequence) a proper use of the
    18        court's time and the public money to have those witnesses
    19        in the witness box without knowing that there was going to
    20        be a witness from the Defendants to respond to them.
    21
    22        My Lord, I know that your Lordship gave the Defendants some
    23        references from the Court of Appeal's judgment on 25th
    24        March on the strike out appeal.  I have one passage, in
    25        particular, in mind which is on page 13 at letter A.
    26        I will read the whole of the passage.  This is in the
    27        judgment of Lord Justice Neill:
    28
    29        "It is to be remembered that the defences of justification
    30        and fair comment form part of the framework by which free
    31        speech is protected.  It is, therefore, important that no
    32        unnecessary barriers to the use of these defences are
    33        erected while at the same time the court is able to ensure
    34        that its processes are not abused by irresponsible and
    35        unsupported pleadings."
    36
    37        My Lord, I make this submission now to your Lordship, that
    38        your Lordship should direct that I should call the evidence
    39        I have to deal with the witnesses of the Defendants who
    40        have now been identified as being willing to attend court,
    41        that is to say, I think it is six of them.
    42
    43        I think I am right in saying that I can deal with that
    44        evidence by means of a mere three or four witnesses of the
    45        Plaintiffs.  Then, I would submit, your Lordship should say
    46        that the rest of all the witnesses that I might need to
    47        deal with, the Defendants' other witnesses, should be held
    48        in abeyance to give their evidence by way of rebuttal if it
    49        should turn out, contrary to expectation, that any of those
    50        remaining 37, or whatever it is, witnesses of Plaintiffs 
    51        do, in fact, come to court. 
    52 
    53   MR. JUSTICE BELL:  If I thought there was merit in your general
    54        argument, an alternative course would be if, for instance,
    55        not having had any kind of reply either by completing the
    56        form or speaking on the telephone from particular
    57        witnesses, I say, Mr. Morris, because it seems to me in
    58        organising the calling of the Defendants' witnesses in this
    59        part of the case he is in the front line between the two
    60        Defendants, if he were to say:  "I have now had a response

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