Day 082 - 01 Feb 95 - Page 13

     
     1
     2   MR. JUSTICE BELL:  All I am asking for is a new list of the
     3        documents specified, if you can, but described by class if
     4        you cannot, which are left over for me to make a new ruling
     5        on, if necessary, or which have come into the case since,
     6        for instance, section 1B.
     7
     8   MR. MORRIS:  Yes, I will do that.  But can I say that it will
     9        help, if when we discuss them at a hearing like we did in
    10        December, if the Plaintiffs indicate they are going to make
    11        enquiries, that they should also have an order that should
    12        they find anything they should disclose them because
    13        otherwise I have to keep -- like last night, I was up to
    14        3 o'clock re-reading what happened in December so that
    15        I could make this list here.  Really, the Plaintiffs should
    16        be under an obligation to disclose the documents or report
    17        on what has happened after it has been discussed in this
    18        court.
    19
    20   MR. JUSTICE BELL:  Take that point on Monday again, if you wish,
         but I really think the first step is you to make a list now
    22        of where you say you are actually entitled to discovery in
    23        the sense of a list from the Plaintiffs and we can then
    24        deal with that.  Then we can go on to the other factor as
    25        well:  If they are in the possession, custody or power of
    26        McDonald's, is it only fair that you should actually see
    27        them?  Do you see?
    28
    29   MR. MORRIS:  Yes, without reading the law, I am finding it hard
    30        to see what the use would be of a list if we did not
    31        actually get the documents but ......
    32
    33   MR. JUSTICE BELL:  The reasoning is this, that by and large
    34        there is no reason why you should not have a list -- there
    35        is no prejudice to the other party in doing that -- so you
    36        can see what they have or have had in the past.  But then
    37        before putting the party who has or has had those documents
    38        in the past to what may be the burden of actually producing
    39        copies, the question comes in of whether it is necessary
    40        for the fair disposal of the action or for saving costs.
         What I suggest is you read what Lord Justice Parker said in
    42        that case because there is a paragraph where he says why he
    43        thinks the distinction is sensible.
    44
    45   MR. RAMPTON:  My Lord, can I perhaps help in this way?  We
    46        recognise -- obviously, we must recognise -- an obligation
    47        to make discovery of such documents as are the subject of
    48        any order by your Lordship.  There are, I think, a residue
    49        of some matters which we are in the course of dealing with
    50        and have not completed.  There is no argument about that. 
    51        We have to do it and we have to say "yea" or "nay" whether 
    52        the documents exist, having searched for them. 
    53
    54        Then there is a category of documents which we have
    55        indicated without an order from your Lordship that we would
    56        look for.  There is no, I do not think, any time limit on
    57        that.  If we find them, we will disclose them; if we do not
    58        find them, we will say so.  As far as the Costa Rican
    59        documents and some of the US documents are concerned, there
    60        is a difficulty because of not being able to talk to Dr.