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.

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