Day 307 - 27 Nov 96 - Page 05
1 even things out and say that because we have had to go
2 first proving justification in the main action, the
3 Plaintiffs should have to go -- McDonald's should have to
4 go first proving justification in the counterclaim. So, we
5 would still ask that you adopt that and rule that
6 Mr. Rampton should go first with his closing speech on
7 counterclaim.
8
9 MR. MORRIS: I agree with that last point, what the Court of
10 Appeal said. I just wanted to add that the counterclaim is
11 not the mirror of the main claim, we would contend, because
12 the Plaintiffs have singularly failed to justify, so far as
13 we can see, their material in that way. What they have
14 done is, they have raised new defences such as
15 privilege -----
16
17 MR. JUSTICE BELL: That is a matter for me to decide.
18 Justification is a live issue in the case, as far as I am
19 aware.
20
21 MR. MORRIS: It is the justification. I mean, they have to
22 justify the words that they have put in their material,
23 which is a different matter.
24
25 MR. JUSTICE BELL: Yes.
26
27 (Please see separate transcript for Ruling)
28
29 MR. JUSTICE BELL: For the time being, Ms. Steel and Mr. Morris,
30 you must proceed with your submissions in the time
31 available relating to the counterclaim.
32
33 MS. STEEL: Can I just say one thing? That application we were
34 making was actually only for -- I mean, at this point we
35 were only making an application for Mr. Rampton to go now
36 with the counterclaim argument; we were not actually doing
37 it for the whole of the argument.
38
39 MR. JUSTICE BELL: So be it. That does not make any difference
40 to my ruling or the reasons which I have just given.
41
42 MS. STEEL: The other thing I would like to ask you, you said:
43 "In certain respects of the counterclaim the burden of
44 proof is on [us]", and I understand that it is up to us to
45 prove publication, but were you referring to anything
46 beyond that?
47
48 MR. JUSTICE BELL: Yes. It would be up to you, if this was a
49 privileged occasion, to prove that what was said on the
50 privileged occasion which is defamatory, you say, of you
51 both, was published with express malice. There may be
52 others matters which I do not particularly have in mind,
53 but the publication, about which there may be very little
54 issue, the meaning about which there may be some issue,
55 whether it is defamatory, about which there may not be much
56 issue, are all matters for you to prove. In case I hold
57 eventually that what was said, if defamatory, was published
58 on a privileged occasion -- which I will summarise briefly
59 as response to attack, a legitimate response to attack --
60 then it would be for you to prove, if you could, if that
