Day 313 - 13 Dec 96 - Page 58
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2 There is one other thing. I do not desire to say anything
3 more about the article 10 point because, in our respect
4 submission, it is not in play in this case, never could be
5 so long as the libels were libels on the Plaintiffs in the
6 way of their business and trade, which they plainly are.
7
8 There is only one other thing I ought to say.
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10 MR. JUSTICE BELL: There is another limb of -- I need not trouble
11 you further about reversal of the burden of proof because
12 that seems to me that that goes whichever way the point you
13 have just argued goes.
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15 MR. RAMPTON: Yes, it does, though I would say this, that if
16 I had the burden of disproving justification or proving
17 falsity I would submit that I have fully discharged it, but
18 I do not have to make that submission under English law.
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20 MR. JUSTICE BELL: No. I need not trouble you on the other
21 point which the Defendants argued, about there being a
22 qualified privilege to make the kind of statements made in
23 the leaflets so that the Plaintiffs must prove malice, and
24 if some parts of US law were the law of this country then
25 that might be so, but I am concerned with English law.
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27 MR. RAMPTON: That would be a New York Times v Sullivan type
28 defence which has been adopted in some form by the High
29 Court in Australia now for some cases, and I think also in
30 India, but it is not part of the law of England, and that
31 is the beginning and end of it.
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33 MR. JUSTICE BELL: Then the final essential point, it seems to
34 me, that Ms. Steel and Mr. Morris were making in suggesting
35 there should be a stay and I should not give judgment after
36 all in this case, was that the action ought to be stayed as
37 an abuse of process, and they made various points about the
38 situation they were in vis-a-vis their clients.
39
40 What, at the moment, it seems to me, is that the question
41 at the end of the day is whether the circumstances are such
42 that justice cannot be done in the particular case. For
43 instance, the Hamilton case was rather like that because it
44 was, if my recollection of it in its early days is correct,
45 it was said that justice cannot be done in this case
46 because we cannot obtain certain information because of the
47 Bill of Rights.
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49 MR. RAMPTON: That is right. If there is some-----
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51 MR. JUSTICE BELL: Rather, one cannot adduce evidence.
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53 MR. RAMPTON: That is right. If the Defendant is under such a
54 disability that he is unable to defend himself, or vice
55 versa the Plaintiff cannot advance certain parts of his
56 case in order to defeat the defence, then the court may
57 well say, 'We cannot deal with this, this is not fair'.
58
59 MR. JUSTICE BELL: Does it amount to this. Even if one assumed,
60 even if -- and I stress that 'one assumed' -- one assumed
