Day 110 - 29 Mar 95 - Page 20
1 first. The second principal reason why we put it that way,
2 with your Lordship's agreement, was that the Defendants
3 themselves are likely to be the principal witnesses on
4 publication.
5
6 That would have meant either they had to give all their own
7 evidence somewhere near the beginning of the case or that
8 their evidence had to be split in two. I believe it was a
9 feeling of everybody in court at the time -- certainly the
10 Defendants, I think your Lordship and certainly myself --
11 that, in fairness to the Defendants, it would better they
12 should deal with everything at once at the end of all the
13 evidence.
14
15 MR. JUSTICE BELL: I acceded to the suggestion as to the order
16 in which matters should be dealt with. I understood that
17 to be the reason. Anyway, I have expressed some anxiety
18 about it.
19
20 MR. RAMPTON: My Lord, I would like to try to be helpful.
21 I would like to know, really, what it is your Lordship has
22 in mind, not necessarily as a concluded view but as a
23 possible way of dealing with this so far as, for example,
24 he is only one of the publication witnesses, Mr. Carroll is
25 concerned. That piece of evidence relates only to
26 Ms. Steel.
27
28 MR. JUSTICE BELL: It does, but at least I have taken that as
29 the most simple example of a way of proving publication,
30 because if there is evidence which is uncontroverted in
31 fact, it may be controverted to the extent that it suggests
32 I cannot remember, but not actually challenged head-on that
33 it happened. I will speak quite openly, at least you have
34 what, on the face of it, might appear to be cogent evidence
35 that one of the Defendants has actually published this
36 leaflet which avoids any sort of argument about joint
37 enterprise or participation in publication by others or by
38 a body of people, a number of people I will say acting
39 together and so on. It would make me feel less
40 apprehensive about what you would say the nearest
41 possibility but, nevertheless, a possibility that
42 publication is not, in fact, established.
43
44 One of the reasons is this. When you call a witness,
45 Ms. Steel and Mr. Morris, if the evidence relates to them,
46 have in cross-examination positively got to make it clear
47 whether it is a matter of putting to proof or there is a
48 challenge that positive evidence given is actually
49 inaccurate.
50
51 If one considers the position of Mr. Carroll, if he came
52 into the witness box and said, if he did, what his
53 statement says, we have to see what he says in the witness
54 box: "I saw Ms. Steel hand out a leaflet and it was the
55 leaflet which is complained of in this case, not an A5
56 leaflet which has got some of the same kind of allegations
57 in". I am then interested to hear whether Ms. Steel puts
58 to him,, "No, that is not true, that did not happen" or
59 merely, "Are you sure that that is what happened?" She
60 cannot properly put the former unless she has some basis
