Day 148 - 05 Jul 95 - Page 04

     
     1   MR. JUSTICE BELL:  That is what the argument is about, you see.
     2        I can see that is what you will argue, but Mr. Rampton may
     3        not agree with that view.  The point of me saying what
     4        I have said is this.  I am not going to obviously decide
     5        whether you should have leave to amend or not dependent on
     6        whether it will involve further discovery or not.
     7        Discovery is a consideration which does not arise until
     8        I have decided that you should have leave to amend in any
     9        particular instance.
    10
    11        But you have to make your application for leave to amend in
    12        time for us to have at least a preliminary discussion about
    13        discovery and for me to give indications, if not outright
    14        rulings, it seems to me, so that can be grappled with
    15        during the long vacation.  If you do not get leave to
    16        amend, there is no problem; if you do get leave to amend,
    17        there may be no further discovery or McDonald's will just
    18        say:  "We do not have any relevant documents so it will be
    19        easy"; but the worst scenario is that you will get leave to
    20        amend, that there will be relevant documents and that it
         will take McDonald's some time to find them.
    22
    23        I am not saying this will be so, but I have to allow for it
    24        being a possibility.
    25
    26   MR. MORRIS:  Yes.
    27
    28   MR. JUSTICE BELL:  So long as it is a possibility you have to
    29        keep your eye on the timetable.
    30
    31   MR. RAMPTON:  My Lord, may I say something at this stage?  What
    32        your Lordship has said is, of course, entirely right.  But
    33        it is possible that an intervening stage in the process has
    34        been omitted.  In a normal case, if a plea such as this had
    35        been contained in the original Defence, these five
    36        paragraphs, it would have been the subject of a searching
    37        request for further and better particulars, and the
    38        question of discovery would have been deferred until after
    39        the court had said whether or not those particulars should
    40        be given if, yes, and they had been given, because the
         ambit of discovery in defamation actions, as in any other
    42        action, is defined by the particulars.
    43
    44        Looking at these paragraphs last night, the one question
    45        which did seem to me needs to be addressed is whether, as
    46        the lawyers put it, these paragraphs do not absolutely
    47        scream for particulars.  If leave were given, the first
    48        thing we would do is to slap on the Defendants a very
    49        thorough request for particulars before ever we got round
    50        to the question of discovery. 
    51 
    52   MR. JUSTICE BELL:  All that does is underline -- I have said it 
    53        a lot of times before and I am conscious I am repeating
    54        myself time and time again, the ball is in your court to
    55        make this application.  The longer it goes on, the harder
    56        you make it for yourself to get leave, quite frankly.
    57        There is a discretion about leave to amend.
    58
    59   MR. MORRIS:  I do not have any problem about doing it.  The
    60        reason I am not prepared today is because it may need