Day 307 - 27 Nov 96 - Page 04
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2 MR. JUSTICE BELL: No, in large parts of the claim itself,
3 because in relation to many of the allegations of
4 defamatory statement you have pleaded justification and
5 fair comment, but the burden of proving which lies upon
6 you. What happens, in a case which does not have what I
7 will call a "swinging burden of proof", depending upon what
8 the particular issue is, the burden is normally entirely on
9 the Plaintiff. There may be circumstances where it is
10 entirely on the Defendant. If there are circumstances when
11 it is entirely on the Defendant and that is apparent to the
12 judge and the parties from the start, I have had experience
13 of cases where the Defendant has gone first because it is
14 for the Defendant, essentially, to do the work. But that
15 is not the situation here.
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17 MR. MORRIS: Do you mean the Plaintiff?
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19 MR. JUSTICE BELL: No, for the Defendant to go first. In most
20 cases the burden of proof is on the Plaintiff; if it is an
21 ordinary negligence action it is on the Plaintiff. There
22 are some circumstances where all the facts are agreed, save
23 for some allegation which is made by the Defendant, and the
24 burden of proving which is on the Defendant. I am not
25 going to go into them now. In those circumstances,
26 sometimes the judge says, and those representing the
27 parties readily agree, that the most sensible way of
28 approaching the proceedings is for the Defendant to go
29 first as if he or she were Plaintiff and set about trying
30 to prove their case.
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32 But that is not the situation here. The situation in this
33 case is that the burden of proving some things is on the
34 Plaintiff and of proving others is on you, Ms. Steel and
35 Mr. Morris.
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37 MS. STEEL: I mean, I did not try to suggest that in the main
38 action the burden of proof was not on us. I am aware in
39 libel cases, as far as justification goes, the burden of
40 proof and fair comment as well is entirely on the Defence.
41 But that equally applies to the counterclaim and McDonald's
42 have pleaded justification of the statements that were made
43 in their defamatory publications about us, and it is a
44 discrete part of the case, it is a discrete claim, and if
45 it was a separate action McDonald's would be going first,
46 and there is really no reason why they cannot go first now,
47 bearing in mind that Mr. Rampton has said several times
48 that his speech is ready. I do not really see why they
49 cannot go first. It would be helpful to us because,
50 obviously, it means that we can see what their case is,
51 which is not actually apparent in large parts. You know,
52 how much of their pleadings they are going to try and
53 support when it comes to it, because it appears to us they
54 have virtually no evidence on any of it, and I think it
55 would probably save time if they went first.
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57 The other point I would just like to make, Mr. Rampton said
58 about the Court of Appeal giving the stamp of approval to
59 you. The Court of Appeal just said it was up to your
60 discretion, which means that you have the discretion now to
