Day 280 - 17 Jul 96 - Page 09
1 and if one measures what they did at the meetings there is
2 clearly the stuffing of envelopes and etc, that went on,
3 and how does one then distinguish for which parts the
4 Defendants can properly be liable and which the proposed
5 third parties are liable for.
6
7 MR. JUSTICE BELL: All these I can see as arguments as to
8 whether Ms. Steel and/or Mr. Morris have been proved to
9 have participated in any publication, and I see may be
10 arguments as to whether they did participate in
11 publication. They have shown that the Plaintiffs have
12 impliedly or expressly consented to that publication,
13 whether it be a general publication or publication of a
14 specific copy of the leaflet on a specific occasion. But
15 you cannot be a tort feasor, can you, if someone consents
16 to what you are doing? And if that is so, how can any of
17 the enquiry agents be a tort feasor here? They may have
18 done what would clearly be a tort were it not for consent.
19
20 MR. STARMER: Yes.
21
22 MR. JUSTICE BELL: But how can you avoid implicit consent to
23 what they expressly did? Then there arises the question,
24 well, does that amount to consent to what the Defendants
25 did also, and I could go back to my trespass analogy.
26
27 MR. STARMER: Well, the argument there would be that the issue
28 of consent obviously is not determined yet. There has been
29 no ruling as far as I understand, and therefore that will
30 have to be determined.
31
32 MR. JUSTICE BELL: Yes, it will, but I have given leave, in
33 effect, for it to be argued.
34
35 MR. STARMER: Yes. I am reminded, as I understand the
36 position, the Plaintiffs are denying consent generally.
37
38 MR. JUSTICE BELL: Yes.
39
40 MR. STARMER: Therefore, they are not saying that 'We deny this
41 but we do accept that some of it may have been of our
42 making, and we therefore limit our case in that way'.
43 Therefore, at the moment one has to -- obviously, it
44 depends on the final judgment, but at the moment on the
45 basis of their claim they are saying consent is denied
46 therefore--
47
48 MR. JUSTICE BELL: I do not think they are saying that in
49 respect of the inquiry agents because witnesses, we have
50 got evidence that the instructions were to infiltrate
51 London Greenpeace.
52
53 MR. STARMER: Yes, I notice -- I mean, as far as I could see
54 the witnesses are quite careful to say our instructions
55 were to infiltrate and be present but not to touch on what
56 their instructions were in relation to participation, and
57 the impression I got, and it may be a totally false
58 impression, is that they were saying, really, we had then
59 an area of discretion as to how we maintained our position
60 in the group, and they chose their part, each of them.