Day 261 - 12 Jun 96 - Page 63
1 that evening in that place." If you had instructed
2 him: "Well, I really just do not know whether it was
3 there", he might well say, "Are you sure that the leaflet
4 in question was there", and he might have asked questions
5 of the kind you have asked as to what the indicators are.
6 If your instructions to him were: "Well, I really cannot
7 remember, but the state of things was such that it probably
8 was there or may well have been", he probably would not
9 have asked a question at all about it, or might well not
10 have done.
11
12 There is a different when you are representing yourselves,
13 and there is a difficulty, I appreciate, when you are not
14 legally trained, even though you now have considerable
15 experience of cross-examination. I hope I make due
16 allowance for that. But if you are going to suggest at the
17 end of the day that the position positively is that the
18 leaflet was not there, you should put it to the witness,
19 because that is what counsel would do.
20
21 MS. STEEL: If we were represented, would it not be the case
22 that our representative might have applied for this
23 particular pleading to be struck out on the grounds that
24 the Plaintiffs had not actually bought any proper evidence
25 that it was actually available on the day?
26
27 MR. JUSTICE BELL: No. He would leave it all there and he would
28 make such comment -- he or she would make such comment --
29 as they thought fit at the end of the day; because it is
30 not just an allegation which stands on its own. It is not
31 a matter where one would just necessarily, say, look only
32 at what the direct evidence is of witnesses like
33 Mr. Pocklington who were there on the occasion in
34 question. He would appreciate that the judge would look at
35 the whole picture of such general course of action as he
36 could take from all the evidence and look at positive
37 evidence given by a witness, if any, as to whether the
38 leaflet was there, look at indicators that that is
39 unreliable, but look at other features in the evidence
40 which might make it more likely than not that it was there
41 and, at the end of the day, come to a conclusion on balance
42 of probabilities.
43
44 So, all I invite you to do, if you are going to suggest at
45 the end of the day that it was not there, which it seems,
46 in saying there is no reliable evidence -- I mean, I am not
47 suggesting you are sitting on the fence on purpose; I just
48 do not know -- but saying that there is no reliable
49 evidence that it was there seems to me tantamount to having
50 a case that it was not there; and if that is the position,
51 you had better put it to Mr. Pocklington, and then we know
52 that is your case.
53
54 MS. STEEL: It is just that my understanding was that whilst it
55 was up to a defendant to prove justification, the one thing
56 it was up to a plaintiff to do in a libel case was to prove
57 publication. It just seems a very strange way to go about
58 doing it, to lose all the originals, to not be able to have
59 them attached to the proper statement, and to not be able
60 to provide any proper proof.
