Day 079 - 27 Jan 95 - Page 74
1 witnesses in relation to those aspects.
2
3 MS. STEEL: We will do that, but I would still request that
4 some kind of clarification of this area is given.
5
6 MR. RAMPTON: My Lord, I can help very briefly. Nobody disputes
7 the right of any person, be it Ms. Steel or Mr. Walker or
8 anybody else, to say that they think suffering inflicted on
9 animals -- I use that word neutrally -- which animals
10 undergo in the cause of mankind ought not to happen. The
11 position in this court is very far from that.
12
13 The position is that there is a defence of fair comment.
14 The defence of fair comment can only succeed, if it be a
15 comment that is complained of, if three conditions are
16 fulfilled. The first is that, in the opinion of the court,
17 there is, objectively speaking, a sufficient substratum of
18 fact -- that reflects upon what your Lordship was saying a
19 moment ago -- to support a comment. The second is that if
20 the commentator chooses to state in his publication the
21 facts on which he purports to rely, does he state them with
22 sufficient accuracy or is the defence vitiated by a
23 miss-statement of the factual basis. A third condition is
24 that the comment should be made honestly and not from some
25 ulterior dominant motive.
26
27 So, my Lord, that is in very brief summary why I have said
28 the other day I have rather a lot to say on this subject
29 and I will have at the end of the case but not now.
30
31 MR. JUSTICE BELL: Is what was said actually in the South Hetton
32 Coal Company case with regard to fair comment, would that
33 still be an accurate reflection today?
34
35 MR. RAMPTON: I cannot remember what it said, I am afraid.
36
37 MR. JUSTICE BELL: If someone has got it -- is not in your
38 photocopy but I read the whole report last night.
39
40 MR. RAMPTON: I am being invited by Mr. Atkinson to say that it
41 is better set out in Duncan and Neil but I will shrink from
42 that for the moment.
43
44 MR. JUSTICE BELL: Both the Master of the Rolls and Lord Justice
45 Lopes -- I think you could leave Lord Justice Kay on one
46 side for the moment ---
47
48 MR. RAMPTON: Yes, I agree.
49
50 MR. JUSTICE BELL: -- they have something to say about -----
51
52 MR. RAMPTON: I reinterpret them in the light of more modern
53 authority to say this, that what was said was arguably
54 comment so the jury could find that it was comment, but it
55 was, as a matter of law, a matter of public interest, but
56 that the jury had found (and had been entitled to find)
57 that the language used was so excessive as to be evidence
58 of malice. That is how I read the judgments in that case.
59 The excess of language is only, of course, one of the sorts
60 of evidence upon which a Plaintiff may rely to prove malice
