Day 001 - 28 Jun 94 - Page 31
1 2.00 p.m.
2 MR. RAMPTON: My Lord, the defences are justification. That is
to say, that the substance of the words are true and fair
3 comment which is to say, in so far as the words consist of
opinion or comment, they are fair comment on a matter of
4 public interest.
5 In dealing briefly with those two defences, I shall also
deal with the question of malice which in answer to the a
6 defence of fair comment, if proved, defeats the defence.
My Lord, as a preliminary (which I am not going to refer
7 your Lordship to now, but I give your Lordship the
reference), the principles relating to fair comment, the
8 legal principles, are summarised at paragraph 12.02 of
Duncan & Neil on defamation. The principles of law
9 relating to malice in relation to a plea of fair comment
are summarised at paragraph 17.10.
10
My Lord, I do not envisage having to spend very much time
11 on either or any of these issues. I will deal with fair
comment in a moment. That will take a very little time
12 because, my Lord, as I have suggested, if I am right, the
vast majority of the defamatory allegations in the leaflet
13 are statements or allegations of fact. If so, they are
not susceptible to the defence of fair comment at all;
14 they are either true or false.
15 But, my Lord, your Lordship may in the end feel there are
some few parts of the leaflet which may be regarded as
16 comment. If so, there are two questions for your Lordship
to decide: The first is an objective question. Are those
17 comments such as a fair minded person holding strong views
on the matter in question might honestly make on the facts
18 which have been proved before the court? The second
question is this: If so, were the defendants in this case
19 (and this is a subjective question) in publishing those
comments motivated primarily by a desire to express their
20 honest opinions about the matter in question or, on the
contrary, was their dominant motive an ulterior or
21 improper one, such as a desire to damage or destroy
McDonald's for reasons quite other and at any price in
22 truth or fairness.
23 My Lord, at this stage it would not be right for me to
make any submission about how your Lordship might be
24 inclined to answer those questions at the end of the
case. However, as matters presently stand, I do submit
25 that the plaintiffs are able to assert, first, that the
factual basis for the allegations contained in the
26 leaflet, whether they be statements of fact or comments,
is and always was so flimsy that the inference may
27 legitimately be drawn by the court that the defendants'
dominant motive for publishing them must have been an
28 ulterior or improper one.
29 Secondly, this, that by reference to the material to which
I have already drawn your Lordship's attention, it may
30 credibly be suggested by the plaintiffs that that motive,
that improper motive, was simply to "smash" -- I use that
