Day 280 - 17 Jul 96 - Page 08
1 round the outside fence and said, "Come on, let's take a
2 short cut across my garden", then other matters might come
3 into it.
4
5 MR. STARMER: Yes, but to bring the analogy into line with this
6 case, one would then have to say your friends, plus
7 tresspassers, all do go across the garden. They destroy
8 your favourite sweet peas, jointly, because they are
9 walking, I do not know, ten yards abreast, and then you sue
10 two or three of them for all the damage and they rightly
11 say "I walked through the middle of your sweet peas, all
12 the rest would have been standing but for the other people
13 you put there".
14
15 MR. JUSTICE BELL: It has got to be a joint tort feasor has it
16 not?
17
18 MR. STARMER: At the moment it is. If the Plaintiff has, if
19 the Plaintiff truly has a claim against these Defendants in
20 the wide terms they are putting their case then they are
21 claiming that in respect of the acts of those agents these
22 Defendants are liable. And it becomes difficult, drawing
23 the lines becomes very difficult, because to take the two
24 or three examples, so far as the putting a leaflet in an
25 envelope is concerned and posting it on, it may be that
26 those incidents are in themselves identifiable and that
27 either the Plaintiffs would have to amend their claim or
28 you could rule in due course that they could not succeed in
29 that part of their claim, but nobody knows what is going to
30 happen. The onward transmission of those leaflets becomes
31 extremely important, because if it is suggested that
32 thousands of these leaflets are in circulation around the
33 country, and I can't remember where I have seen it, I think
34 it is either a pleading or statement or something which
35 says they have been handed out at schools or something, it
36 was put in fairly wide terms. One has to say, well, where
37 really does that come from? There is no evidence, unless
38 someone corrects me, as to the origin of the wider
39 circulation.
40
41 So, there is not a clear demarcation in those cases.
42 So far as the basis of the case, which is that by being, as
43 it were, near a stool or a table at which the leaflets are
44 available one gets into even more difficulties, because
45 with Brian Bishop he is there at a stall at the George Roby
46 without the Defendants being there staffing it himself.
47 Now, in relation to all of those leaflets to what extent
48 can one distinguish between the Defendants and the proposed
49 third party? What happened to them? Where did that go
50 to? What effect did they have on the Plaintiff's
51 reputation?
52
53 And then, in relation to the involvement in the group,
54 which is the nub of their case, it becomes almost
55 impossible to disentangle the Plaintiffs from the proposed
56 third party because the schedule shows if one takes simple
57 attendance at the meetings, and I will go through the
58 figures in a minute, one actually comes up with the figure
59 that is shown, certainly in relation to Mr. Morris. He
60 attended very few compared with the proposed third parties,
