Day 304 - 22 Nov 96 - Page 11

     
     1        confuse, the court with the reality of what has actually
     2        gone on, on what evidence there is.
     3
     4        We would say that for these reasons it is necessary to go
     5        back to and state the basic principles of law and rules of
     6        evidence, and then to analyse the evidence in detail.
     7
     8        Going through the legal framework, I have got some cases.
     9        What I might try and do is sort them out over lunchtime,
    10        because they are not kind of quite ready, they are not
    11        bundled together.  Obviously, we got help on the legal side
    12        of the case.  A civil action cannot lie unless the words
    13        complained of have been published, and the burden of
    14        proving the publication lies with the Plaintiff.  As per
    15        Lord Esher, Master of the Rolls, in Hebditch v. MacIlwaine
    16        1894 2 QB at pages 58 to 61:  "It must be borne in mind
    17        that the material part of the cause of action in libel is
    18        not the writing, but the publication of the libel" , and
    19        further, the Plaintiffs must show that the publication was
    20        by the defendant.  That is Powell v Gelston, 1916 2 KB
         page 609.  And there is a quote from that case: "Upon the
    22        trial, the libel must be produced and before it is read it
    23        must be proved that it was published by the Defendant or by
    24        others with his privity."  That is actually referred to in
    25        Holt on Libel, page 283.
    26
    27        I mean, we did not really understand all the practicalities
    28        and technicalities of where the publication evidence should
    29        come, i.e. in what section of the trial it should come, but
    30        it does appear from that that McDonald's should have
    31        actually proved that we published the fact sheet before it
    32        was even read by -- well, it would be you, because we do
    33        not have a jury.  It was McDonald's choice to take that
    34        course of action and, not knowing the law or what was
    35        supposed to go on, we couldn't really say much about
    36        whether or not that was an appropriate course.
    37
    38        Anyway, to go on.  The Plaintiffs allege in summary in
    39        paragraphs 3A and 3B of their amended Statement of Claim
    40        that at some time between 20th September 1987 until the
         date of the issue of the writ we produced the leaflet
    42        complained of, and "produced" is then defined as
    43        "prepared", "compiled", "wrote", "edited", "printed",
    44        "arranged" -- sorry, or "arranged to be printed", or
    45        "caused or procured the preparation, compilation or
    46        writing of the leaflet for the purposes of distribution and
    47        publication".
    48
    49        Then at paragraph 3C they allege that by virtue of our
    50        involvement, which was particularised, they say, in the 
    51        previous pleadings, the Further and Better Particulars and 
    52        so on, and obviously that requires quite a detailed 
    53        analysis of the replies to the request for Further and
    54        Better Particulars made by the Plaintiffs and comparing
    55        that with the actual evidence in the trial.  But paragraph
    56        3C basically says that by virtue of our involvement we
    57        caused, procured or had been party to or authorised the
    58        distribution and publication whensoever and wheresoever of
    59        the fact sheet that had been distributed and published.
    60