Day 304 - 22 Nov 96 - Page 12
1 Then paragraph 3D is the specified occasions in 1989 and
2 1990. As far as I can see, there are seven separate
3 occasions: 2nd October 1989, 16th October 1989, 21st
4 October 1989. I am not sure whether it is 25th or 26th
5 January 1990 because it got changed in the pleadings, but
6 whatever the date of the meeting was anyway. 22nd February
7 1990, 1st March 1990, and 26th April 1990. So they are
8 really the actual specified dates that were in the original
9 pleadings and which the Plaintiffs were trying to prove,
10 and they say that on that date either we directly published
11 the fact sheet or that we caused the fact sheet to be
12 published, which would be joint enterprise or -- well, yes
13 -- or that we procured the publication of the fact sheet
14 and, obviously, this requires a detailed examination of the
15 evidence given in relation to each of the meetings.
16
17 Going back to the production of the fact sheet,
18 Mr. Rampton, on behalf of the Plaintiffs, accepted the
19 other day that there was no evidence whatsoever to place
20 myself in the group at the relevant time in relation to
21 production of the fact sheet and that they were therefore
22 withdrawing the allegations of production against me.
23 However, the Plaintiffs still intend to pursue its case on
24 this against Mr. Morris. Now, he is going to go into that
25 evidence in relation to that matter on Monday. But,
26 obviously, the argument will be that there is not any, and
27 it is quite clear that the basis for that pleading was so
28 flimsy as to be non-existent.
29
30 In any event, we would submit that the case as pleaded in
31 paragraphs 3A and B does not disclose a cause of action as
32 stated in Hebditch v. Macilwaine, which I mentioned
33 earlier. There is no remedy for writing a defamatory
34 article even if it is written for the purpose of
35 distribution. So, put another way, even if, which
36 obviously is denied, Mr. Morris had produced the fact sheet
37 complained of, unless it was also alleged in those
38 paragraphs that he did, in fact, publish it, there is no
39 cause of action, and we would say that therefore paragraphs
40 3A and 3B should be struck out as failing to disclose any
41 cause of action.
42
43 In so far as these paragraphs plead that the Defendants
44 caused the publication of the leaflet whensoever and
45 wheresoever up to the date of the writ, that is again a
46 legal fiction because in order to disclose an actionable
47 claim the Plaintiffs must seek to found a claim on the
48 basis that there has been actual publication, and it is
49 wrong to infer publication in the circumstances of this
50 case.
51
52 The newspaper analogy which Mr. Rampton put forward during
53 the argument for leave to amend the Statement of Claim does
54 not apply in this case. The fact sheet was not on sale.
55 It does not have a circulation figure printed on it. So
56 there is no evidence about the numbers which were printed.
57 There is no prima facie evidence of established circulation
58 methods and, clearly, it is just not the same type of
59 publication as a newspaper which has a circulation run for
60 every day of the week or every, you know, however
