Day 057 - 29 Nov 94 - Page 06
1 So, it is unfair.
2
3 MR. JUSTICE BELL: I have to say, I think it is pretty obvious
4 from words I have used in the judgment, part of which is
5 one of the annexes to Mr. Rampton's skeleton argument, and
6 the questions I asked some witnesses as to whether when
7 they used "link" they meant "causal link", that in the F as
8 originally pleaded I have interpreted the word "linked" as
9 causally linked.
10
11 MS. STEEL: I accept that you say you have interpreted the
12 word "linked" in the pleadings as "causally linked", but
13 the point is that we have not, and we had based our
14 pleadings on just "link" and not on "causally linked". For
15 the case to be changed now puts us at a disadvantage
16 because we have not prepared our case with the aim of
17 reaching the higher meaning of "cause". We have prepared
18 it for the lower meaning of just a "link".
19
20 Reference has been to at various stages during the case we
21 must have realised that it was "cause" that was the issue.
22 The point is that, at whatever stage we realised during the
23 case, it was too late because that was not how we had
24 prepared our case. We had prepared it on "link",
25 concentrating just on "link".
26
27 We would have asked far more questions about cause and
28 about, if they were accepting a link, what exactly were
29 they meaning by that, and could that not be a causal link,
30 and all kinds of things like that, had we known that
31 "cause" was the issue. I mean, before we go any further,
32 we feel that the Plaintiffs should have to explain what
33 they mean by "cause" because -- I think you put to us last
34 week -- it could be thought that, for example, the links
35 through obesity could be said to be causal and promotion
36 could be said to be causal and treatment could be said to
37 be causal.
38
39 The point is that if the amendment is allowed on that
40 basis, but the Plaintiffs at a later stage argue that
41 "cause" has to mean only trigger or initiate, then
42 obviously that would be unfair as well, because we would
43 not have prepared for that. So, we feel they should have
44 to define that.
45
46 We also think that they should have to define what they
47 mean by "meal" in their amendment. They are claiming that
48 it is for the purposes of clarification. We actually feel
49 that it makes it far more confusing and we think that they
50 should be pinned down on what they are saying.
51
52 There is as well a difference between -- I mean,
53 I mentioned this last week -- "causally linked" and
54 "cause", because "cause" implies it is like a direct,
55 known carcinogen and it is also possible -----
56
57 MR. JUSTICE BELL: There is also maybe the difference which I
58 have just tried to expound, the difference between one meal
59 causing cancer and a causal link in the sense that it is
60 the diet which may cause cancer, but McDonald's food may
