Day 163 - 25 Sep 95 - Page 06

     
     1        in the case which in itself, if that was the course which
     2        you ruled that we should have to go down to win this
     3        application, then we would have to go down that way, and it
     4        may not be an unhelpful way to go ahead, because I do not
     5        think anybody in this courtroom would want to call further
     6        witnesses and plough through hundreds of pages of
     7        transcripts on an issue which, if it could be excluded from
     8        the case, could save everybody the effort, but then I would
     9        have to redraft my application.
    10
    11   MR. JUSTICE BELL:  At the moment I just do not see how you could
    12        possibly succeed on this application, even if I thought it
    13        sensible to entertain it halfway through the trial, before
    14        you can actually say what the meaning of the leaflet is.
    15
    16   MR. MORRIS:  We have said what the meaning of the leaflet is.
    17
    18   MR. JUSTICE BELL:  Before I decided what the meaning of the
    19        leaflet is, because I may not accept your argument as to
    20        what it means.  I may think it means more than you say it
         means.  I may think it means less than Mr. Rampton says it
    22        means but I may think it means more than you say it means.
    23
    24   MR. MORRIS:  That is where Charleston comes in.  Our
    25        understanding of the Charleston case, and certainly our
    26        submission, is that the headings cannot alter or make
    27        defamatory what is not defamatory in the body of the
    28        leaflet of an article which is the text.
    29
    30   MR. JUSTICE BELL:  You have to take the whole.  The way they
    31        looked at it in Charleston was that the photographs
    32        themselves might well have had a defamatory meaning, but
    33        what, in effect, the court held there is you had to look at
    34        the whole of it including the text, and that the text
    35        neutralized any defamatory meaning which might have been
    36        taken from the photographs.
    37
    38        If we start off, for instance, just for the sake of
    39        argument, with McCancer and the cartoon, one way of
    40        approaching it would be to say:  "Well, now we will look at
         the wording of the text to see if the words of the text
    42        neutralize what otherwise might be the meaning of cancer
    43        and the cartoon", but simply (as I am minded to think at
    44        the moment) you have to look at the whole lot.  What would
    45        the ordinary reasonable fair minded reader make of the lot
    46        all taken together?
    47
    48   MR. MORRIS:  It just puts me in a bit of difficulty in
    49        continuing now.  I was going to take you to Mr. Preston and
    50        Mr. Beavers to show how they have admitted publication of 
    51        the equivalent defamatory text and then go on.  I would 
    52        submit that the headlines which are not very -- well, there 
    53        is a whole argument about the headlines, whether they do
    54        refer to that section and whether they are satirical, and
    55        the fact is they cannot make defamatory what is not
    56        defamatory.
    57
    58        That is the way I would prefer to do it, but if you feel
    59        that you want to do it the other way round, I would like
    60        probably to do that tomorrow.