Day 112 - 31 Mar 95 - Page 45
1 ago about whether or not there might be some advantage in
2 dealing with the issue of publication, at any rate so far
3 as the Plaintiffs' witnesses are concerned, at an earlier
4 stage than presently? My Lord, we have given that
5 considerable thought because, obviously, it has its
6 attractions in some way, but I fear it does not actually
7 work.
8
9 My Lord, first of all, the difficulty that your Lordship
10 could not make a decision, for example, no prime facie case
11 of publication, without hearing all eight of the
12 Plaintiffs' witnesses. You have to hear all of them, not
13 just a selection. That means that there would be a serious
14 disruption of my employment witnesses which I am anxious to
15 avoid, if I possibly can. It would mean a split in that
16 issue.
17
18 My Lord, that is, as it were, a practical difficulty. My
19 Lord, there are two more substantial difficulties of
20 principle. The first is that even supposing (which I do
21 not for even a single moment) your Lordship were to decide
22 that there was no prime facie evidence of publication of
23 the leaflet complained of as being the libel, that would
24 not, we believe, have the effect of stopping the case for
25 two reasons.
26
27 The first, which is a somewhat subtle question of law
28 perhaps and one might have to revisit it if one ever found
29 oneself in that position, is that there is, of course, a
30 distinct claim for what is effectively a perpetual quia
31 timet injunction. That, as your Lordship knows, is based
32 not simply on the publication of the leaflet, but on the
33 mass of material which has appeared since then and which it
34 would appear, at any rate some of which it would appear,
35 the Defendants admit having published.
36
37 In order to decide whether that injunction was or ought to
38 be granted, whatever the status of the original pamphlet,
39 your Lordship would have to decide whether or not the
40 statements made in the succeeding material was true or not,
41 because if it was true you could not then grant an
42 injunction.
43
44 My Lord, that is difficulty one which is a difficulty of
45 principle.
46
47 Even more problematical than that, we think, is that by way
48 of defence to counterclaim the Plaintiffs rely upon all the
49 material from the date of the original leaflet right
50 through until the present day and continuing, that the
51 Defendants have published or that the Plaintiffs say the
52 Defendants have published. The Plaintiffs Defence to
53 Counterclaim in respect of the claim which the Defendants
54 have made, is that all that material is false and is known
55 by the Defendants to have been false when they published
56 it. To that end, I fear, all the evidence which is given
57 on what I call the main claim would have to be given
58 anyway. I am not sure that any shortcut would arise, in
59 fact I believe that it would not arise, if one took the
60 publication issue earlier.
