Day 084 - 07 Feb 95 - Page 05
1 is going to come up anyway, or leave it to prepare our case
2 on why the McDonald's Corporation, effectively, has access
3 to a document.
4
5 MR. JUSTICE BELL: That is your choice. But, if I might
6 suggest, the first thing is -- it is obvious but let us go
7 through it anyway -- to write down a description of the
8 document or the class of documents. The second stage is to
9 write down who you think has the document or class of
10 documents in its custody or possession. Under that write
11 down why you say that is so. The next stage is to write
12 down why you say that the First or Second Plaintiff has
13 that document or class of document in its power.
14
15 That may be either in the case of a subsidiary, for
16 instance, you say that the First or Second Plaintiff has an
17 enforceable legal right to call for the document, come what
18 may, but remember (and I suggest you look at Lonrho again,
19 if you want) just producing some evidence or information
20 that the First Plaintiff owns the majority or all the
21 shares in that subsidiary is not the end of the story.
22
23 Before Ms. Steel speaks to you, the final stage is if it is
24 a supplier, for instance, or a franchisee, for instance,
25 who has you think the document or class of documents in its
26 possession or control, then you have to look for what you
27 think is the legally enforceable right for the First or
28 Second Plaintiff to call on them. That will almost
29 certainly involve showing that there is a contractual
30 obligation. In fact, at the moment I would find it
31 difficult to see what other basis for a legally enforceable
32 right there could be apart from contract.
33
34 Supposing you are still up and running when you have gone
35 through all that, then we have to see whether it is
36 relevant and whether it is necessary for the fair disposal
37 of the case or the avoidance of cost. Broken down, those
38 are steps. If you identify the document, first of all,
39 then we can, first of all, see whether there is any
40 objection to production, whether it might be produced by
41 agreement, for instance. Then if such agreement is not
42 forthcoming, you have to go on to the other factors. That
43 is the best analysis I can give you of the considerations.
44
45 MR. MORRIS: Right. Shall we move on with that then?
46
47 MR. JUSTICE BELL: Yes, very well. Remember that the case is a
48 constant process, so you may or may not have information
49 now upon which to found the claim which you come into
50 possession of in the future when, for instance, you get the
51 opportunity to ask questions of some executive or someone
52 from one of the suppliers. But, if I were you, I would
53 mention the document or class of documents as soon as
54 possible, not just wait for the witness, so that at least
55 we can register it.
56
57 MR. MORRIS: Yes. That is what I was thinking; it is best to go
58 through it and it may not be -- obviously, McDonald's may
59 be co-operative about producing documents, but if they are
60 not and there is an area of disagreement in terms of the
