Day 304 - 22 Nov 96 - Page 16
1 what proof is there that the fact sheet was published by
2 myself or Mr. Morris to third parties.
3
4 MR. JUSTICE BELL: Yes.
5
6 MS. STEEL: "Whether the facts as proved constitute publication
7 is a question of law for the judge to determine. But where
8 this question of law depends upon doubtful or contradictory
9 evidence the question of facts should be submitted to the
10 jury and the legal decision should be based upon their
11 findings". That was from Gatley on Slander in 1981.
12
13 Now, on day 261, page 63, lines 33 to 42, you made a
14 reference to the approach that you were taking in this case
15 and you said that you would look at the whole picture of
16 such general course of action as you could take from all
17 the evidence and look at the positive evidence given by a
18 witness, if any, as to whether the leaflet was there, look
19 at indicators that that is unreliable, but look at other
20 features in the evidence and at the end of the day come to
21 a conclusion on the balance of probabilities.
22
23 That was specifically referring to 21st October, the London
24 Greenpeace fair. But I think it was a sort of general
25 proposition, and then you went on to say that at the end of
26 the day there may be a lot of parts missing, but you can
27 see that it is the Mona Lisa. If it is such a recognisable
28 picture you may be able to recognise it from one fifth of
29 the parts, if it is not a very recognisable picture you may
30 need 90 percent of it. You cannot make a general rule for
31 it.
32
33 Just in relation to that, we would say that really the only
34 way that the Mona Lisa would be recognisable from one fifth
35 of its part would be to show the smile. If there was the
36 background, then even such a famous and normally
37 recognisable painting would not be recognisable. We would
38 say that in the case now the whole face is missing, let
39 alone the smile. And for all the background painted in
40 infinite detail by the Plaintiffs it is impossible to
41 discern any recognisable picture.
42
43 MR JUSTICE BELL: I have gazed upon Mona Lisa again since I said
44 that. But that is -----
45
46 MR. RAMPTON: Some people have all the luck!
47
48 MR. JUSTICE BELL: Anyway, I take your point.
49
50 MS. STEEL: Right. Moving on to the evidence on publication,
51 we are intending to review the evidence adduced by the
52 Plaintiffs in support of each element of the pleadings.
53 There are several sources of evidence, i.e. the statements,
54 the oral evidence and, in some cases, the notes made by the
55 agents.
56
57 Going on to the section, "by virtue of their involvement,
58 caused, procured or authorised distribution wheresoever or
59 whensoever", this involves looking at the question: what
60 is the nature of London Greenpeace? McDonald's place
