Day 309 - 03 Dec 96 - Page 17

     
     1        observation very clearly the other day during the
     2        Defendants' closing submissions.  In fact, whatever may
     3        have been said at the time -- and we will certainly find it
     4         -- my present recollection, and it is probably that
     5        I misunderstood what your Lordship was saying, I did that
     6        by recollection, and it had stuck in my mind that
     7        your Lordship had said "other than occasionally" or words
     8        to that effect as a gloss.  But, if not, and even if so,
     9        the fact is that your Lordship's meaning is the meaning,
    10        and if, in your Lordship's judgment -- and it is entirely a
    11        matter for your Lordship -- that excludes such a
    12        qualification as "other than occasionally", then that is
    13        that.
    14
    15   MR. JUSTICE BELL:  It occurred to be that an approach might be
    16        this:  there is the meaning as I have ruled it to be; if it
    17        is only true if you have to eat it several times a week or
    18        every day, then, in the meaning I have defined, it is not
    19        substantially justified.
    20
    MR. RAMPTON:  No, it is not.
    22
    23   MR. JUSTICE BELL:  On the other hand, if it is true that if you
    24        eat it once or twice or three times a week, it might be
    25        said -- this might be a matter I have got to decide -- that
    26        it is substantially justified.  Let me take an example.  If
    27        it is true that it may well make your diet high in fat if
    28        you eat it but once a week, then it might be said that that
    29        part of the meaning of the leaflet is justified in
    30        substance; whereas, if it is only true if you have got to
    31        eat it every day or you have to eat it three, four or five
    32        times a week, that it is not substantially justified.  Is
    33        that a useful analysis, or not?
    34
    35   MR. RAMPTON:  I do not believe -- I do not mean this rudely --
    36        but according to what your Lordship said a moment ago about
    37        the effect of the meaning, the effect is to exclude any
    38        consideration of frequency at all, because the leaflet
    39        contributes nothing to that question; it is silent on that
    40        question.  That must mean -- idiotic, as it obviously is,
         when one knows the evidence, but that is a separate
    42        question -- that must mean that even if you eat it
    43        occasionally, it is going to have the effect proposed by
    44        the meaning, because the meaning excludes any consideration
    45        of frequency.  Questions about once a week or three times a
    46        week or once every fortnight become immaterial, which is
    47        why, as I have said in the submission, it has so troubled
    48        me to go on to consider the two later parts of the
    49        question, diet and frequency and diet and health, because,
    50        really, on the evidence of what is in the meals, those are 
    51        sterile inquiries. 
    52 
    53   MR. JUSTICE BELL:  By what rationale was it, then, that you
    54        supposed that the meaning as I have ruled it to be meant
    55        "more than occasionally"?
    56
    57   MR. RAMPTON:  Because I think somewhere in the ruling, but not
    58        the meaning, your Lordship actually said so.  It was one of
    59        the reasons why -- I remember it now, and I will just turn
    60        it up, if I can -- I proposed something which is perhaps