Day 052 - 21 Nov 94 - Page 51


     
     1        Group] also raised before us the situation which he says
     2        often faces a defendant.  The plaintiff at trial may
     3        abandon the more serious defamatory meanings which he has
     4        pleaded and rely upon a relatively innocuous meaning.  If
     5        the defendant has set up a potentially defamatory meaning
     6        which is  more serious than the ultimately relied upon by
     7        the plaintiff and sought in his pleadings to justify that
     8        meaning, the plaintiff will thus have, at least on  the
     9        pleadings, material which he can use against the defendant.
    10          This, however, seems to us to be a largely theoretical
    11        situation.  If the plaintiff abandons all the meanings
    12        which he has specifically pleaded, and seeks to rely upon a
    13        defamatory meaning of less seriousness than that set up by
    14        the defendant, and sought to be justified, we see little
    15        prospect in practice of his being able to make any capital
    16        out of the situation.  On the contrary, the adverse comment
    17        which such a situation would provide would seem to us to be
    18        directed entirely at the plaintiff's case.
    19
    20        "When we read the particulars of justification some of them
    21        appeared to be totally irrelevant, even to the meaning
    22        which Mr. Gray had suggested to the master.  Others
    23        contained not facts, but evidence which it was hoped to put
    24        before the jury. These we have struck out.  But even so,
    25        Mr. Shaw [he was for the plaintiff] was entitled to say
    26        that he was at a loss to know what were the characteristics
    27        of Petrone of which Mr. Gray was alleging the plaintiff
    28        ought to have know.
    29
    30        "the plaintiff's  embarrassment was even more highlighted
    31        by the fact that Mr. Rampton [my Lord,  I was for one of
    32        the other defendants] (on whose clients' behalf the
    33        affidavit  of Miss Buckley was not sworn) so far from being
    34        'unhappy' about the terms which we have quoted,
    35        enthusiastically embraced them.  Mr. Rampton on behalf of
    36        the Daily Mail will be relying on the self same particulars
    37        in order to contend that there are reasonable grounds for
    38        suspecting that the plaintiff knew that Petrone was a
    39        terrorist.  It is only in the course of the interchanges
    40        between the bench and the bar, that it has become apparent
    41        that the self same particulars are to be relied upon as
    42        justifying different allegations.
    43
    44        "It seems  to us to have been wholly overlooked that in
    45        both cases the defendants were asking for a substantial
    46        indulgence by the court, namely, leave to amend in order to
    47        set up a plea of justification, two years after they had
    48        delivered their original defence.  In such a situation,
    49        whatever may be the theoretical problems that the
    50        defendants might face, the court should not, in our 
    51        judgment have hesitated in ordering the defendants so to 
    52        plead their case that the plaintiff knew quite clearly what 
    53        the defendants were purporting to justify.   However, we
    54        would go even further and say that whatever may have been
    55        the practice to date, [and the date of this case, my Lord,
    56        is 1986] in the future a defendant who is relying upon a
    57        plea of justification must make it clear to the plaintiff
    58        what is the case which he is seeking to set up.  The
    59        particulars themselves may make this quite clear, but if
    60        they are ambiguous then the situation must be made

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