Day 163 - 25 Sep 95 - Page 11
1 questions to ask them in the light of that.
2
3 MR. RAMPTON: Yes.
4
5 MR. JUSTICE BELL: Everyone is much more focused. Is that
6 sensible?
7
8 MR. RAMPTON: I have no doubt it is. I do not believe there is
9 any objection to your Lordship's doing it. I expect your
10 Lordship would like to know why I say that. It is to be
11 found in Ord. 33 r. 3 which says -- I will read it out --
12 "The Court may order any question or issue arising in a
13 cause or matter, whether in fact or law or partly of fact
14 and partly of law, and whether raised by the pleadings or
15 otherwise, to be tried before, at" -- that is the important
16 word -- "or after the trial of the cause or matter, and may
17 give directions as to the manner in which the question or
18 issue shall be stated", a meaning that envisages some kind
19 of pretrial order, but I do not believe that makes any
20 difference to the substantive power expressed in the rule
21 to make a decision of the fact during the course of the
22 trial. Plainly, the meaning of words is just such a
23 question.
24
25 MR. JUSTICE BELL: The notes refer to, I think it was the Keays
26 case, Miss Keays who brought an action for defamation, that
27 was deciding whether the words were capable of bearing a
28 defamatory meaning, but I have not actually read the
29 authority. I suppose one ought to take -----
30
31 MR. RAMPTON: The Court of Appeal then went further than that.
32 I cannot remember the name of the case. It was against the
33 Independent newspaper, admittedly, by a group of parties.
34 Again it was a case tried by judge alone, I think
35 Mr. Justice Moiland. The Court of Appeal decided what the
36 meanings actually were and sent the case back to the judge
37 to try it according to their decision, not even his.
38
39 MR. JUSTICE BELL: That had not come into my reasoning, but
40 I suppose, if one needed further justification, one could
41 say this, that if I decide what the meaning of the leaflet
42 is and any party is not happy with that, certainly not
43 inviting them to do so, but they could go to the Court of
44 Appeal while we still have time to call further evidence.
45
46 MR. RAMPTON: That had not crossed my mind. I hope we do not
47 have to make use of it, but it is a theoretical advantage,
48 yes. I am perfectly content that your Lordship should do
49 that because I believe that it is only in rather limited
50 circumstances that we need any more evidence at all on this
51 issue.
52
53 MR. MORRIS: There is a section, if I can help, in that r. 33,
54 3, very close to the bottom of that section. It is on page
55 590 of the White Book, the second to last paragraph in that
56 section: "In a libel action, the question whether the
57 words complained of" -- sorry, this is capable of bearing.
58
59 MR. JUSTICE BELL: That is the Keays case. The situation
60 normally arises in that form because most defamation
