1 IN THE HIGH COURT OF JUSTICE No. 1990-M-NO. 5724
2 QUEEN'S BENCH DIVISION
3
4 Royal Courts of Justice
5 Strand, London
6
7 Tuesday, 26th March, 1996
8
9
10
11 Before:
12
13 MR. JUSTICE BELL
14
15
16 __________
17
18
19 MCDONALD'S CORPORATION
20
21 MCDONALD'S RESTAURANTS LIMITED
22 Plaintiffs
23
24 - v -
25
26 HELEN MARIE STEEL
27
28 DAVID MORRIS
29 Defendants
30
31
32 __________
33
34
35
36
37
38 MR. RICHARD RAMPTON Q.C. and MR. T. ATKINSON (instructed by
39 Barlow Lyde & Gilbert) appeared on behalf of the Plaintiffs
40
41 The Defendants appeared in person.
42
43
44
45 __________
46
47
48 Transcribed from the stenotype notes of
49 Barnett Lenton & Company,
50 61 Carey Street, London WC2A 2JG
51 (Telephone 0171-405-2345)
52
53
54 __________
55
56 PROCEEDINGS
57 DAY 233
58
59 __________
60
1
DAY 233
1 Tuesday, 26th March, 1996
2
3 MS. STEEL: Just before we start with Mr. Lyman, I wanted to
4 hand in a draft defence which we want to apply for leave to
5 add to our defence. It concerns consent by the Plaintiffs
6 to the publication of the leaflet complained of, through
7 the publication by the private investigators who
8 infiltrated the group and through the length of time they
9 left it before bringing the action. But, obviously, we are
10 not expecting to deal with that today.
11
12 MR. JUSTICE BELL: What I suggest is, we hear Mr. Lyman's
13 evidence and then, whenever that ends, there will obviously
14 be procedural matters to be discussed, and you can mention
15 that if you wish.
16
17 MS. STEEL: OK. If we call Mr. Lyman?
18
19 MR. JUSTICE BELL: Yes.
20
21 MR. HOWARD LYMAN, affirmed
22 Examined by the Defendants
23
24 MS. STEEL: If you could give your full name to the court,
25 please?
26 A. My name is Howard F. Lyman.
27
28 Q. And you are resident from Washington in the USA?
29 A. Alexandria, Virginia.
30
31 Q. Can I just say, we have given the witness a copy of the CV
32 to take into the witness box, which, hopefully, you have a
33 copy of ---
34
35 MR. JUSTICE BELL: Yes, I have. I put it in my bundle.
36
37 MS. STEEL: -- to make it easier to go through. (To the witness)
38 Can you basically confirm that this CV is correct?
39 A. It is.
40
41 Q. I will ask you a few questions about it. We see from the
42 work experience that you were raised on a four generation
43 farm/ranch in Montana and you were the owner of the Lyman
44 Ranch and Lyman Cattle Company from 1965 to 1983. Can you
45 tell us a little about the size of the ranch, the way it
46 changed over the years, and how you came to be critical of
47 modern production methods?
48 A. The original homestead was bought by my
49 great-grandfather in 1908. My father and grandfather
50 became part of it. I was raised on that and went to
51 Montana State University, graduated in 1961, then went into
52 the army, came back in 1963. In 1963, when I came back,
53 I took a look at the farm. It was a small organic dairy
54 farm. I took a look at investing the money I had saved in
55 the time up to that time, and I decided to invest that
56 money. I became a part owner in it, and, as that went
57 along, I became the majority owner. What I attempted to
58 was to take that organic farm and put it into the kind of
59 farm that I was educated about at Montana State
60 University. When I went to Montana State University, it
2
1 was the time that we were talking about better living
2 through chemistry: get bigger, get better or get out.
3
4 Q. Can I just ask you to try and go a little bit slower, so
5 that people can keep up with you?
6
7 MR. JUSTICE BELL: Yes. You may be very anxious to say what you
8 want to say, but it is much easier for our procedure if you
9 just answer Ms. Steel's questions. She may well take you
10 through the statement and supplementary statement which
11 I have, but do not take offence if I say that it is not an
12 occasion for making a speech. We have our own procedures
13 for getting your evidence out, Mr. Lyman.
14 A. I will do my best.
15
16 MS. STEEL: Sorry. It is probably my fault; I asked a very
17 wide question. If you can take it fairly slowly. So, what
18 that you were taught at the Montana University?
19 A. When I went to Montana State University, I was taught
20 in the use of herbicides, pesticides, hormones and
21 medication in enhancing the production features of
22 animals. When I came back to the farm, those were the
23 practices that I employed. Prior to that time, the farm
24 had been organic. After I came back, we became a very
25 large business, chemical farm.
26
27 Q. Can you tell us what size the farm became?
28 A. When I came back from the army, the farm was less than
29 500 acres, the maximum size of the farm. Prior to the
30 liquidation, I owned over 12,000 acres; I probably leased
31 another 100,000 acres altogether. So the total was about
32 112,000 acres.
33
34 Q. What was the maximum number of cattle that you had at one
35 time?
36 A. The most that I had was 1,000 cows and calves, 5,000
37 head feedlot; and so at one time I would have as many as
38 7,000 head of cattle.
39
40 Q. Was that all you were raising, cattle, or -----
41 A. No. At that time, we were raising wheat, barley, corn,
42 corn silage, alfalfa silage. We had 30 employees at that
43 time that were involved both in grain and livestock
44 production.
45
46 Q. Can you just explain how it was that you decided that that
47 was the wrong way to go about -- how you basically became
48 critical of the modern agricultural practices?
49 A. I enhanced what I learned in Montana State University,
50 using the chemicals. In 1979, I ended up paralysed from
51 the waist down. My doctor told me that I had a tumour on
52 my spinal cord, that I would have less than one chance in a
53 million that I would ever walk again. Just prior to that,
54 my brother had died -- who was a partner with me in the
55 farm -- had died of Hogkins Lymphoma. When I was in the
56 hospital, contemplating a life in a wheelchair, I looked at
57 what had happened on that farm from the time that I had
58 taken over the management of it. With the chemicals we had
59 used, we had eliminated most of the birds in drifts; from
60 the herbicides we were using, killed most of the trees, the
3
1 tilth of the soil had changed from a living soil to soil
2 that appeared like asbestos. In the hospital, reflecting
3 on that, I had to admit to myself that I was the cause of
4 that happening; and I believed the reason for it was the
5 type of practices I was using on the farm.
6
7 Q. Were they unusual practices or -----
8 A. No. Those practices were the ones that -- they were
9 unusual prior to the 1960s, but they became more and more
10 usual as we went along. They were the standard of the
11 industry, and are the standard of the industry today.
12
13 Q. Now, from 1983 to 1986, you were an agricultural advocate
14 on farm foreclosures. Can you just tell us what that
15 involved?
16 A. After I sold my farm in 1983, I spent the majority of
17 my time consulting with other farmers in their production
18 practices. I worked with them as far as organising
19 co-operatives, changing their practices to farm more in
20 accordance with nature. I spent almost full-time
21 travelling round the States, going to hundreds of different
22 farms, working with farmers, making changes that I believed
23 would have been more cost beneficial to them.
24
25 Q. So, in terms of actual practical running of farms, did you
26 have involvement after you closed your farm in 1983
27 or -----
28 A. Absolutely. I probably spent more time in management
29 of more farms after I sold my farm than I did in my own
30 when I had it before.
31
32 Q. Then two down from that, we see that you were a senior
33 lobbyist for the National Farmers Union from 1987 to 1992.
34 Can you explain what is involved in that?
35 A. At that time, I was basically stationed in
36 Washington DC. When Congress was in session, I spent the
37 majority of my time up on the Hill working with
38 legislation. When Congress was out of session, I spent
39 almost all of my time travelling around the entire country,
40 meeting with farmers that were members of the National
41 Farmers Union. I worked with them on organising co-ops.
42 I worked in depth on the analysis of whether they had the
43 financial ability to come together to form co-ops and form
44 their own businesses. In that time, I probably visited
45 thousands of different farms, met with thousands of
46 different farmers, looked at financial statements,
47 different methods of farming, and was very involved in the
48 modern methods of agriculture at that period of time.
49
50 Q. The farms that you visited, were they just in one or two
51 states, or were they right across the United States, or
52 what?
53 A. The entire United States is the area that I covered.
54
55 Q. Have you also visited slaughterhouses and processing plants
56 or just concentrated on the farming side of things?
57 A. I have been to hundreds of slaughterhouses, probably as
58 many as 50 processing plants. When I was in the business,
59 I made sure that I went to every slaughterhouse that I ever
60 consulted with as far as selling cattle. It was a normal
4
1 practice for me. I would not sell cattle to a
2 slaughterhouse I had not visited.
3
4 Q. Do you know whether any of those slaughterhouses or --
5 sorry, did you answer -- yes. Do you know whether any of
6 those slaughterhouses or process plants were companies that
7 supplied McDonald's?
8 A. Absolutely.
9
10 Q. How -----
11
12 MR. RAMPTON: My Lord, I have had no notice of this.
13
14 MS. STEEL: We are not going to go into any particular
15 criticism of any particular slaughterhouse.
16
17 MR. RAMPTON: Well, my Lord, the critical factor which is
18 missing from everything that Mr. Lyman has written on
19 paper, including as recently as 26th February, is that he
20 is not able to say anything about McDonald's operation at
21 all. If he was to come to this country -- and his trip has
22 been planned a long time in advance -- and make allegations
23 that I could have been in a position to deal with if I had
24 had warning, then I should have had notice.
25
26 MS. STEEL: I think Mr. Rampton is worrying unnecessarily. The
27 only point that is going to come out is that all the
28 slaughterhouses are effectively the same; there was nothing
29 unusual about any of them. I do not think there is
30 anything to worry about.
31
32 MR. JUSTICE BELL: I am not concerned if the effect of
33 Mr. Lyman's evidence is that: "Right across the USA
34 everyone farms in this way or all the slaughterhouses I
35 have been to in the USA" -- although, actually, there is
36 only passing reference to slaughterhouses in the
37 statement. So I will wait and see what we do about that.
38 What there may be concern about, which I think Mr. Rampton
39 was intimating, is if it is said there was something
40 specific to McDonald's, rather than an inference that since
41 this is the generality it must apply to McDonald's.
42
43 MS. STEEL: No. That is the only point, that basically they
44 are all -----
45
46 MR. RAMPTON: My Lord, I am not concerned about slaughterhouses
47 particularly, but I am concerned about the processing
48 plants, because Mr. Lyman has written -- with what direct
49 knowledge, I do not know -- but he has written quite a lot
50 about the labelling in the United States. Your Lordship
51 knows what the Plaintiffs' evidence is about that. If
52 Mr. Lyman is going to on to say that his evidence about
53 labelling applies to the plants which specifically supply
54 McDonald's, then I would have been taken unaware and ought
55 not to have been.
56
57 MS. STEEL: The slaughter -----
58
59 MR. JUSTICE BELL: Does it relate to that or not?
60
5
1 MS. STEEL: I do not think so. Dave is going to do the bit
2 about the labelling, so I am not -----
3
4 MR. JUSTICE BELL: Carry on for the time being, and we will see
5 where we get to.
6
7 MS. STEEL: (To the witness) Did any of slaughterhouses that
8 you visited supply McDonald's?
9 A. Yes.
10
11 Q. And were they basically typical of the industry as a whole,
12 or were they unusual?
13 A. They were typical of the industry.
14
15 Q. Do you remember roughly how many you visited that you were
16 aware that they supplied McDonald's?
17 A. There is only one that I know of specifically at that
18 time that was a McDonald's supplier, and that was Montfort,
19 Colorado.
20
21 Q. Right. That was one of the ones you supplied?
22 A. Yes.
23
24 Q. Were there others that you were aware of ---
25 A. There were.
26
27 Q. -- when you visited?
28 A. There were other plants that I was aware of that were
29 supplying McDonald's, but I cannot say that I specifically
30 sold to them cattle.
31
32 Q. But they were basically the same as the industry?
33 A. The industry was very standard, and there was not a
34 whole lot of difference between any of them.
35
36 Q. How many of the ones that you visited -- not specifically
37 for you to supply with cattle -- how many of the ones you
38 visited supplied McDonald's -- just roughly?
39 A. I would say that at the time I was in business, there
40 were about 175 suppliers of McDonald's. I would believe
41 that at least 50 of the slaughterhouses that I visited
42 probably were suppliers to them.
43
44 Q. Just a final point on the CV: the organisations listed at
45 the bottom of page, can you just explain, are they what you
46 were members of?
47 A. I was a member of Montana Stockgrowers; I was a member
48 of the Montana Grain Growers; I was an officer of the
49 Montana Associated Farmer Elected Committee; I was elected
50 by my fellow farmers to represent themselves and the
51 administration of the farm programmes from the government;
52 I was an officer in the Democratic Party; I was in the
53 Montana Farmers Union; and I was an officer at one time of
54 the National Farmers Unions; I was a member of the Plains
55 Resource Council.
56
57 Q. Now, if we move to your statement -----
58
59 MR. MORRIS: Just a couple of questions on your background. Did
60 you try to organise a setting up of a co-operative
6
1 slaughter plant?
2 A. Absolutely. The Montana Farmers Union was very
3 involved in organising a co-op slaughter facility in
4 Great Falls, Montana. I spent a good deal of my time
5 working on it. We were basically trying to put in a very
6 large scale modern slaughter facility. I got one of the
7 best educations in my life in the business in that
8 endeavour.
9
10 Q. A couple more questions. You said your farm is very large?
11 A. Yes.
12
13 Q. In what kind of -- compared to other farms in the States,
14 can you give a kind of comparison?
15 A. I would say my farm was in the top five per cent of all
16 of the farms nationwide, as far as size and growth.
17
18 Q. Have you visited farms in other countries?
19 A. Yes, I have. Every country that I travel to, I make it
20 a point of going and seeing the farmers and how they farm.
21 It is something that I find that is the most important
22 thing I do when I do foreign travel.
23
24 Q. Just one further question. You supply Montfort Colorado
25 slaughterhouse, but you were in Montana State. I just
26 wanted you to say why that was?
27 A. In Montana, the slaughter facilities were older,
28 smaller, and ended up being closed. The closest commercial
29 slaughter facilities for Montana were either Colorado,
30 Washington or South Dakota; and so I had no other choice.
31 The only slaughter facilities left in Montana were Mom and
32 Pops slaughter facility; that would only handle about 20 a
33 week. We had to go to those areas if we were going to get
34 our cattle killed.
35
36 MS. STEEL: OK. If you could get your statement. I am
37 not -----
38
39 MR. JUSTICE BELL: It is in the volume behind you on the top
40 shelf, please, Mr. Lyman, with a pale blue spine to it and
41 a "1C" in green.
42
43 MS. STEEL: The files to the left.
44
45 MR. JUSTICE BELL: At the very top, 1C; and there should be a
46 divider with a "K" on it. I think your statement is at "1"
47 after that.
48
49 MR. RAMPTON: I think it is "I".
50
51 MR. JUSTICE BELL: "I", is it? Is there a divider with an "I"
52 on it? What is on that orange divider?
53 A. I have it.
54
55 MS. STEEL: If you put it in front of you there, I will read
56 through your statement; and if there is anything that you
57 want to clarify, then if you stop me at the end of a
58 paragraph and explain what it is you want to ---
59 A. OK.
60
7
1 Q. -- or if there is anything you want to correct. The
2 statement is dated July 18th, 1993.
3
4 "My name is Howard F. Lyman and I was born in Great Falls,
5 Montana, on 17th September 1938. I was raised on a farm
6 and ranch producing dairy and meat commodities."
7 A. The thing I would say about that is I am fourth
8 generation on our farm. We produced a wide range of dairy
9 beef, pork, chicken, grain, corn, silage.
10
11 Q. Right. I think that is the bit lower down, anyway. Thank
12 you.
13
14 "I attended Montana State University and graduated in 1961
15 with a BS degree in General Agriculture. Upon graduation,
16 I spent two years in the United States army before
17 returning to work on the farm."
18 A. The degree I achieved in Montana State University was
19 in all areas of agriculture. I have a degree which is
20 called General Agriculture, which meant that I fulfilled
21 the requirements in all areas such as soil, economics,
22 agronomics, the entire thing. So I had a wide ranging
23 degree from Montana State University.
24
25 Q. "From 1963 to 1983, I was actively engaged in animal and
26 grain production. The areas in which I was involved were
27 dairy, pork, registered Hereford, chicken, range cattle,
28 feedlot beef production, veal, grain, silage and hay
29 production."
30 A. I would only like to say that as far as raising
31 registered cattle, that was the area that we worked in
32 genetics; it was the first time that I had really called in
33 to wonder about what I had learned in Montana State
34 University. We were encouraged at that time, in the
35 production of Hereford cattle, that they should be short,
36 blocky animals. We did that. We ended up getting a dwarf
37 gene in our cattle; we ended up having to eliminate our
38 entire registered Hereford cattle because of the dwarf gene
39 that was in it.
40
41 MR. JUSTICE BELL: I am going to stop you there, because I am
42 not concerned with genetics.
43
44 MS. STEEL: OK. "My responsibilities ranged from labour to
45 total financial management. I was in charge of all buying
46 and use decisions of all herbicides, pesticides, hormones
47 and medication used on the operation and at that time of
48 liquidation I controlled over 1,000 range cows and calves,
49 5,000 head of cattle fed annually in confined feedlots, and
50 several thousands of acres of grain grown each year. This
51 operation was expending several million dollars each year
52 and at the maximum I employed over 30 employees."
53
54 Can you just explain about the use of the herbicides and
55 pesticides and medication?
56 A. Yes. On our farm at that time we were buying hundreds
57 of thousands of dollars' worth of herbicides, pesticides
58 hormones and medication. The herbicides that we were
59 buying were the ones that you were used on the crops such
60 as 24D 25D, Emrin, Alrin (?). Many of those have now been
8
1 banned. At that time, they were approved. So far as the
2 pesticides we were using, we were using things like
3 Lindane, which today have also been banned for use. The
4 hormones we used, Diethylstilbestrol, Ralgro, Estrogen,
5 Dialam, have been banned from the market which approved for
6 15 years, that it has been shown to have cancer -----
7
8 MR. JUSTICE BELL: Where are we going now? You know that we
9 have certain particular issues in the case.
10
11 MS. STEEL: Which includes pesticides hormones and -----
12
13 MR. JUSTICE BELL: It does. But where are we going on this?
14 You have mentioned a whole number of different ones which
15 there is no mention of in the -----
16
17 MS. STEEL: They are just examples.
18
19 MR. JUSTICE BELL: We may have some evidence on them, but from
20 experts. But in so far as they refer to, they refer to
21 specific ones.
22
23 MS. STEEL: (To the witness) The antibiotics you were using,
24 how frequently were they used?
25 A. We used antibiotics in our cattle that were in the
26 feedlot every day. We changed the variety of antibiotics
27 every 30 days; because the bacteria would get used to what
28 we were using, we changed the variety every 30 days.
29
30 Q. Was this your own idea to use all these things, or was it
31 something that the industry was doing or -----
32 A. This was a standard of the industry that was
33 recommended. It was the approved practice that was being
34 used.
35
36 Q. And those practices, have they continued -- obviously, not
37 the ones that are banned, but the similar chemicals and
38 antibiotics and hormones?
39 A. The basic approach is the same. Some of the materials
40 are different.
41
42 Q. Do you know how widely hormones are used in the USA?
43 A. I believe that the documentation will show that over
44 90 per cent of all fed cattle in the United States today
45 are injected with hormones.
46
47 Q. When you say fed -----
48 A. Those are feedlot cattle.
49
50 Q. The crops that you grew for feeding to cattle, were
51 pesticides and so on used on them?
52 A. We used herbicides and pesticides on all of the crops
53 that were used for feed for our livestock, yes.
54
55 Q. OK. If we go on to animal condition.
56
57 "When I first became acquainted with animal production, it
58 was at a time when all production was done using natural
59 and organic methods. This allowed the animals a great deal
60 of freedom and their diet was compatible with their natural
9
1 choices. As production recommendation from the land grant
2 colleges and the government extension services became more
3 well known, the treatment of all animals started towards
4 the present day systems of total confinement, feeding diets
5 that reflect surplus products, and use of many chemicals
6 that were never known of at the time I started animal
7 husbandry."
8
9 Can you just explain what you mean by surplus products --
10 needing diets that reflect surplus products?
11 A. When I was feeding cattle, all products that had
12 feeding values were tested on animals, such things as
13 cement dust, paper, potatoes.
14
15 MR. JUSTICE BELL: What was the second one?
16 A. Paper, manure. These were things that were carried in
17 the literature recommended to most operators, such as
18 myself, looking at the products that were available in the
19 area. Say, for example, you had a damn that was being
20 built in the area and there was contaminated cement that
21 was available, that was free for the picking up; many
22 people tried it, fed it. Almost every feedlot I knew of
23 scraped up manure and added it to the ration. It came to
24 the point where there was a computer service available, and
25 this computer service, you would have all of the
26 bi-products that were available in the area, and this would
27 be from manufacturing bi-products, including the ones we
28 talked about, or claypits or -- you name it.
29
30 They would be listed according to their nutritive value;
31 they would be listed according to their price; and you
32 could go to the service, ask them to grind out a
33 formulation of feed for your animals, and they would do
34 that; and it would be the lowest cost ration of whatever
35 was out there, including all of the products that we have
36 talked about.
37
38 I have personally fed all of those things that we have
39 talked about; and that was a standard in the industry of
40 people trying them out. Many of them did not make sense,
41 depending on your access to them; but almost all of them
42 were tried.
43
44 MS. STEEL: What about slaughterhouse bi-products?
45 A. I lived three miles from a slaughterhouse. When we
46 started, we were able to -- that slaughterhouse was
47 connected with a rendering plant. The bi-products out of
48 the slaughterhouse were turned into meat meal. We started
49 out buying that, feeding them to chickens and pigs, and
50 then moved up to feeding them to cattle.
51
52 Today in the United States, 14 per cent of all cows by
53 volume are basically ground up and fed back to other cows.
54 I have great concern that that will do the same thing in
55 our country as the problem you are having here.
56
57 MR. RAMPTON: My Lord, this really is beyond the pale. This is
58 just a publicity stunt by the Defendants.
59
60 MS. STEEL: Feeding slaughterhouse waste to other animals has
10
1 come up on a number of occasions with Mr. Pattison, and so
2 on.
3
4 MR. JUSTICE BELL: Yes. I think you have got to direct your
5 questions. I am not thinking of this particular item. But
6 I would rather you led a bit and pointed Mr. Lyman at what
7 you want specifically. Otherwise, we are going to have
8 pause after pause while parts which are not actually
9 relevant to any issue raised by the leaflet which is in
10 this case are debated, and I have left in or put on one
11 side. You know what -----
12
13 MS. STEEL: I will try, but the problem is that if I lead it too
14 much, I am going to get Mr. Rampton jumping and complaining
15 about that.
16
17 MR. JUSTICE BELL: It may be that he will not. It may be that
18 Mr. Rampton will prefer a bit of leading, rather than just
19 too much carte blanche.
20
21 MS. STEEL: OK.
22
23 "The animal husbandry practised today is only concerned
24 with economics. The comfort and welfare of the animal is
25 only important if there is the chance that the animal will
26 fail to achieve marketability. I participated in this
27 transition. For many years I believed the end justified
28 the means. Today I regard the methods used in most animal
29 production as barbaric and inhumane."
30
31 Can you just say briefly what methods that you are talking
32 about there ---
33 A. The -----
34
35 Q. -- that affect the welfare of animals?
36 A. The practices that we used specifically on my farm and
37 many farms like it were, we brought animals in; we cut
38 their horns off with no antiseptic; we castrated them, with
39 no regard to the pain; we branded them; we ended up putting
40 them in small confined spaces that they were not used to;
41 and we put them on a diet that was totally different than
42 what they had been raised on on the range. I consider
43 those things, today, to be barbaric and inhumane.
44
45 Q. Those things that you have talked about, from your
46 knowledge of the industry, are they still continuing to
47 this present day?
48 A. Yes.
49
50 Q. OK. If we go over the page.
51
52 "The use of confinement and chemical therapy to increase
53 weight gain is self-defeating to the point where the more
54 animals that are crowded together, the more chemical
55 therapy is needed to stave off massive death loss. The
56 conditions in the present day feedlot are adequate if the
57 weather cooperates. However, if too much rain or snow
58 comes to the area the feedlots become death traps for
59 confined animals."
60
11
1 What is the system for clearing out feedlots, clearing the
2 manure from feedlots?
3 A. The manure and feedlots were only cleared out after the
4 animals had gone to market. It was normal to have animals
5 in a pen for a year. In that period of time, the only
6 thing you would do is go in with a dozer, pile up the
7 manure; it would stay in the pen until the animals went to
8 market, and then you would go in and clear it out. But,
9 basically, all of the manure that was in a pen in a year
10 stayed there.
11
12 Q. How often would the manure be piled up within the pen?
13 A. Probably every three months.
14
15 Q. How does that affect the welfare of animals?
16 A. Well, if the weather co-operated, it was fine. If the
17 weather did not co-operate, I have seen it where the
18 animals were standing in slop one to two feet deep. I have
19 even seen animals drowned in the manure in pens.
20
21 Q. Is that more unusual?
22 A. That is not unusual. It is unusual for them to drown;
23 it is not unusual for them to be standing in one to two
24 feet of manure.
25
26 Q. "I have seen cases where large numbers of animals have died
27 from drowning, suffocation, freezing, disease and
28 starvation because they restricted the freedom to move to
29 shelter while there was time before they became trapped.
30 These occurrences are never reported to the general public,
31 because they would cause a tremendous backlash against the
32 present system."
33
34 The conditions that you are talking about, are they
35 industry wide and still -----
36
37 MR. JUSTICE BELL: Can I go back to one matter in the previous
38 paragraph? What about the snow in feedlots; is that
39 because of drifting or just lack of protection from winds
40 carrying snow, or what?
41 A. If you put up protection for the winds, then it
42 basically puts a place where you end up with drifting snow;
43 and in our area in Montana it was not unusual to get one to
44 two feet of snow at a time; it always came with winds.
45 When it came, it would drift in the pens. It was not
46 unusual to have animals suffocate from drifting snow in
47 Montana.
48
49 MR. JUSTICE BELL: Ms. Steel was asking you about the
50 occurrences which you refer to in the next paragraph. Ask
51 your question again, please.
52
53 MS. STEEL: Obviously, there might be differences in the
54 weather across the United States, but, in your experience
55 of farms right across the United States, generally
56 speaking, are these typical of what might happen or are
57 they unusual?
58 A. It has been my experience, as I have travelled across
59 the country, that all large feedlots have become involved
60 in occurrences like this. This is not unusual. It is part
12
1 of the business. I would say it is very normal.
2
3 MS. STEEL: Right, OK.
4
5 MR. JUSTICE BELL: Does anything to which you have referred so
6 far refer apply to cattle which are out on the range or --
7 however you call it -- grazing?
8 A. Very little. The animals in their natural environment,
9 the amount of herbicides, pesticides, hormones and
10 medication given to them are minuscule. The animals are
11 able to protect themselves with the natural terrain
12 features. I would say that a normal -- that 95 per cent of
13 what we have talked about here does not affect the range
14 animals.
15
16 MS. STEEL: That just reminds me of a point I wanted to ask
17 about. When you are talking about dehorning, does that
18 happen to range animals, or is that just feedlot cattle?
19 A. The majority of animals that are dehorned are the ones
20 that go into feedlots. When they were out on the range,
21 the horns are not a significant factor to other animals,
22 because they can stay away from the ones that are
23 aggressive. When you put them in a feedlot, aggressive
24 animals with horns become a real danger to other animals;
25 you must cut their horns off. So it is not something that
26 has to be done out on the range. Usually, it is not done.
27 It is almost always done in the feedlot.
28
29 Q. So, it is a consequence of being kept in confined -----
30 A. The more confined the animal is, the more aggressive
31 they are and the more problems you have with fighting.
32
33 Q. "Transportation and slaughter used in the present system are
34 far from humane and safe. The cost of moving animals is
35 the controlling factor. If the animal is deemed fit for
36 slaughter or sale, that will be the determining factor in
37 how crowded the transport will be."
38
39 Can you just give us an idea of how far animals are
40 transported in the States?
41 A. The longest that I have ever personally seen is animals
42 transported from Florida to California without stopping.
43 I have been there when they unloaded it. The animals were
44 in a terrible state of health. They are dragged off the
45 truck and left in piles.
46
47 In Montana, having no slaughter facilities within the
48 state, it takes between 24 and 30 hours to load up your
49 animals to get them to a slaughter facility. The amount of
50 animals that you put into the truck was based on the cost
51 of how far they were going, and the cost of the truck; so
52 you put as many as possible that were in there.
53
54 I have seen cattle in trucks during storm conditions where
55 the animals absolutely froze through the side of the
56 truck. The transportation in the United States, moving
57 animals is not about the comfort of the animal. It has to
58 do with the cost of getting them there. They recommend as
59 many as possible in the truck for the distances they are,
60 and it is not unusual to see them move 24 to 30 hours
13
1 without stopping.
2
3 Q. Is that something that is unusual to Montana, that kind of
4 distance?
5 A. I would say that Montana, probably, is one of the
6 worst, because of the size of the state and no slaughter
7 facilities. But if we look at feeder cattle, for example,
8 calves that are brought that are going to Nebraska, Kansas,
9 Colorado, those calves will be on the truck an equal amount
10 of time; and there are many cases; this is not unusual.
11
12 Q. Can I just ask -- Mr. Morris asked you something briefly
13 about what happened when you tried to set up a co-operative
14 slaughter facility. What is the position with the
15 ownership of slaughterhouses in the USA?
16 A. The slaughterhouses in the USA today, there are three
17 to four, the top ones, that control 80 to 90 per cent of
18 the industry.
19
20 Q. Of the top -----
21 A. The top three to four slaughter corporations control
22 80 to 90 per cent of the fed cattle that are slaughtered in
23 the US today.
24
25 Q. Do you know the names of those companies?
26 A. The top three would be Cargill, Con Arga and IBP.
27 They, today, will -- those three control 80 per cent. The
28 difficulty that we found when we were trying to start a
29 slaughter facility is that if you did not have access to
30 the consumer market, you could go ahead and kill the
31 animals, you could get them in, but, if you did not have
32 the marketing rights to sell them, it was a stumbling block
33 that we could never overcome. Those marketing rights were
34 totally controlled by the people at the top of the chain.
35
36 MR. JUSTICE BELL: Fed cattle being animals fed in feedlots?
37 A. Correct.
38
39 MS. STEEL: The Montfort plant in Colorado you talked about, is
40 that owned by one of those companies?
41 A. The Montfort plant and all Montfort plants were sold to
42 Con Arga; they own them today. Montfort is a segment now
43 of Con Arga.
44
45 Q. Continuing with the reading: "When animals reach the
46 slaughter facility, the only concern is to kill as many in
47 as short a period as possible. The animals are terrified
48 at the slaughter plant and the cruelty inflicted on the
49 animal in their last moments on earth is indescribable.
50 I believe if viewing of slaughter was required to eat meat,
51 most folks would become vegetarian."
52
53 Can you explain what you mean by "terrified", the animals
54 being terrified at the slaughter plant?
55 A. The first thing is the smell. If anyone or any animal
56 goes to a slaughter plant, the first indication you are
57 there is the smell. It is much different than anything
58 else. You know exactly what it is.
59
60 The second thing is that when the animals go up the runway
14
1 to the kill floor, if you stand there and look at them and
2 you look at them in the eyes -- and, being involved in
3 animal husbandry -- you see the terror in their eyes as
4 they approach the kill floor. The animal behind the one in
5 front of it being stunned sees what is happening, knows
6 exactly what has happened.
7
8 The animals are stunned by what they called a captive bolt
9 pistol. It used to be that they shot them, but it was too
10 expensive. They use a captive bolt; they stun the animal,
11 dump it on the kill floor, hang it up by the hind legs, and
12 then cut its throat, which is what causes its death.
13 Occasionally, the animal is not fully stunned and, when
14 they drop them on the floor, the animal gets up. This
15 usually happens several times a week. That animal is
16 absolutely terrified, running around the floor. It is one
17 of the most dangerous things I have ever seen. No one
18 would want to be on the kill floor at a time a live animal
19 gets in there.
20
21 There is no doubt that those animals going onto the kill
22 floor know they are going to die; and they are not pleased.
23
24 Q. So, in the United States, there is no law which prevents --
25 or, certainly, there was not at the time when you were
26 involved -- which prevents cattle seeing other cattle being
27 killed?
28 A. No. The difficulty that you have in slaughter plants
29 is the turnover of the help that is there. Most employees
30 in the slaughter plants do not survive a month in them.
31 With the gore that is on the floors, it is impossible to
32 shield the animals from what is in front of them, what is
33 going to happen.
34
35 Q. Right. This general scene, did that apply to all or most
36 of the slaughterhouses that you visited both when you were
37 a farmer and when you were making all these visits to
38 slaughterhouses?
39 A. What I am talking about is the absolute standard of the
40 industry. What it is about is: get them in as quickly as
41 possible, kill them as quickly as possible; and the idea of
42 humane slaughter absolutely does not exist.
43
44 Q. OK. I am going to miss out the labelling of meat section
45 for now. Mr. Morris will come back to that at the end of
46 the environmental part and deal with it alongside your
47 supplementary statement. So, if we read from
48 "Environmental problems from animal production":
49
50 "I have witnessed firsthand the problems associated with
51 animal production and the degradation of the land base. We
52 are placing a tremendous financial burden on the farmers
53 and ranchers. In many cases, the production costs incurred
54 by present agricultural practices are equal to, if not more
55 than, the sale price of commodities. This means that most
56 farmers and ranchers are producing at a loss or at best
57 breaking even. Their only solution, in many cases, is to
58 produce more animals on the same acreage and the land base
59 is showing the stress of overgrazing."
60
15
1 Can you just briefly state what the problems are that you
2 referred to on the first line of that paragraph?
3
4 MR. JUSTICE BELL: Well, I do not mind you asking about when we
5 get to the forest, but I specifically made a ruling that
6 land damage in the US generally, anyway, was not a feature
7 for the case. Do you remember, you asked for leave? It
8 was one of the very many proposed amendments, and it was
9 one of the few which I refused you leave for. Are you on a
10 different subject then?
11
12 MS. STEEL: Really, what I am after is, basically, the same as
13 we dealt with with Mr. Pattison, when we asked him about
14 sewage run-off into waterways, and things like that,
15 pesticides, the effects of -- I mean, perhaps Mr. Lyman has
16 already dealt with the effect of pesticides.
17
18 MR. JUSTICE BELL: I have not stopped you reading that
19 paragraph, but where it comes to wearing down the soil
20 through overgrazing and everything else, I specifically
21 said that that had nothing to do with this leaflet. Do you
22 remember that?
23
24 MS. STEEL: I will take your word for it. I do not remember
25 it.
26
27 MR. JUSTICE BELL: You had about five sheets with about 100
28 amendments on, and I refused you leave in respect of about
29 half a dozen of them, and this was one of the half dozen.
30
31 MS. STEEL: Can I ask about the effects of -----
32
33 MR. JUSTICE BELL: Ask about the run-off, because, whether it
34 turns out to be relevant or not, we have had some evidence
35 on it already.
36
37 MS. STEEL: (To the witness) If you could just explain about
38 that, then?
39 A. The thing that happens in the factory fit operations
40 today is that there is so much contamination from faeces
41 and run-off that it is almost impossible to contain it to
42 the lot. It does run off; and in the US today, the
43 government will admit that the number 1 contaminant of our
44 water today is coming from agriculture. It is the pressure
45 that is put on farmers. The only control they have is,
46 basically, to do more production. They do not control
47 their market; they do not control what they are paying for
48 the product; and so the only thing they can do is to
49 produce more units. That is providing a tremendous problem
50 as far as the environment and our water system.
51
52 Q. What effect does it have when it gets into the water
53 system?
54 A. It basically makes it non-usable by humans. It is
55 contaminated. The only thing that it can be used for,
56 basically, is irrigation. The water supply for most rural
57 residents today is contaminated. You either have to get
58 other water or dig deep wells.
59
60 Q. Is there an effect from these problems on the wildlife in
16
1 the area?
2 A. Absolutely. I mean, what you are doing is, you are
3 feeding them a water that is contaminated, and it goes
4 right on through all of the species. It is not unusual to
5 see dead animals around lagoons from factory feedlots.
6
7 MR. JUSTICE BELL: I think you should leave it there. When we
8 had the run-off before, it was specifically related to
9 destructions of forest and no regeneration, and so on; and
10 I can see that there might be an argument that that had a
11 relevance.
12
13 MS. STEEL: OK, I will just read on.
14
15 MR. JUSTICE BELL: But not this.
16
17 MS. STEEL: "The public lands in the US are in the worst shape
18 from animal abuse, and the overwhelming majority of it is
19 classed as far below optimum. This animal abuse is not
20 limited to any one country but is common in almost all
21 grazing countries. Attempts by third world countries to
22 export meat as a way of producing" -----
23
24 MR. RAMPTON: My Lord, now we are getting into territory about
25 which Ms. Steel should be careful to ask Mr. Lyman whether
26 he has any direct evidence.
27
28 MS. STEEL: I was not actually going to ask any questions about
29 this.
30
31 MR. RAMPTON: Then I do not think it should be read. The same
32 applies to a good deal of the next statement, too. I had
33 assumed that this was based on direct experience. It is
34 not, and it should not be read.
35
36 MR. JUSTICE BELL: You see the second paragraph on that page,
37 Mr. Lyman -- forget the first which we have been through
38 and forget the third for the moment -- where is your
39 information for "This animal abuse is not limited to any
40 one country"? Is that just things you have read?
41 A. That is not just countries that I have read, but
42 countries I have travelled to; but I have not travelled to
43 the rainforest.
44
45 MS. STEEL: So if we leave it after "is common in almost all
46 grazing countries"; I will not read out the rest of that
47 paragraph.
48
49 MR. JUSTICE BELL: Yes.
50
51 MS. STEEL: "My experience in animal production convinces me
52 that destruction of the natural land base by animals under
53 the control of humans is out of hand. If we do not control
54 our animal numbers, we will cause damage to the environment
55 that is irreparable."
56
57 What I have read from your statement -- and Mr. Morris will
58 come back to the section on beef labelling -- are you happy
59 for that to be taken as your evidence?
60 A. Yes.
17
1
2 Q. And you stand by what you said there?
3 A. Yes.
4
5 Q. Right. Thank you.
6
7 MR. MORRIS: I am just going to ask one question about what you
8 dealt with before. Are there regulations governing
9 production methods, chemicals used, animal welfare, on
10 farms throughout the United States?
11 A. Regulations on animal welfare are zero. There are
12 regulations on chemicals that are banned. There are
13 suggested regulations in the use of chemicals which, in my
14 experiences, are totally ignored by the industry. Even the
15 chemicals that are banned in many cases are available if a
16 person wants to violate that. The check on that is almost
17 totally non-existent.
18
19 Q. Going back a page in the statement: "Labeling of Meat.
20 The meat distribution system in place today makes it almost
21 impossible to trace the origin of meat sold at the retail
22 level in most cases. The outbreak of E.Coli 0157 H7
23 recently in the State of Washington" -- that was not
24 McDonald's; that was Jack-in-the-box?
25 A. Jack-in-the-box.
26
27 Q. "....showed clearly that even with the resources of the
28 Federal Government the trail from the retail market to the
29 point of production is impossible to follow. The important
30 information learned was that the majority of the meat that
31 was used by this breaking plant was imported.
32
33 "When meat is imported into this country, it immediately
34 becomes part of the domestic supply and is
35 indistinguishable from home-grown. This problem is further
36 complicated in the case of ground meat. The source of this
37 product is many different trimming and mixing operations
38 before ending in the final product. Ground meat requires
39 lean meat to be mixed with the abundance of fat that we
40 produce because of feeding grain to the majority of our
41 feedlot animals. This lean meat comes from domestic cull
42 dairy cows and imported grass fed beef.
43
44 "North America imports about one-third of all the beef
45 exports in the world. After it clears any border
46 inspection, it is treated with the same label as domestic
47 production and in most cases even the meat handlers could
48 not identify where the product was produced."
49
50 Then going on to your second statement -- do you stand by
51 that?
52 A. Yes.
53
54 Q. Yes. Going on to your second statement, which was
55 February 24th, 1996. "This is a supplementary
56 statement...."
57
58 MR. RAMPTON: My Lord, may I please say something? If we are
59 going straight on to read this, it may be best -- may I
60 make the suggestion -- since it is quite evident -- it is
18
1 not Mr. Lyman's fault of course; he is not a lawyer --
2 there are large parts of this which are quite plainly, on
3 their face, hearsay and should not be read, in our
4 submission.
5
6 MR. JUSTICE BELL: Would you like to sit down, Mr. Lyman? If
7 you do, there is a chair behind you.
8
9 MR. RAMPTON: If I indicate, my Lord, now which I believe they
10 are, then maybe if the Defendants want five minutes to
11 think about it, we can come back and maybe avoid an
12 argument -- I do not know. It appears that the third
13 paragraph is hearsay.
14
15 MR. MORRIS: Which?
16
17 MR. JUSTICE BELL: "In the 1970s".
18
19 MR. RAMPTON: It appears that the fifth paragraph -----
20
21 MR. JUSTICE BELL: Let me just re-read that. The words which
22 are hearsay go from "who claimed to restaurant chain", does
23 it not?
24
25 MR. RAMPTON: That is right, my Lord; that is the important
26 bit. By all means, read the rest of it, but that is the
27 only bit that matters.
28
29 MR. JUSTICE BELL: Well, subject to any argument, the generality
30 that must apply to McDonald's.
31
32 MR. RAMPTON: Yes, of course. Then, my Lord, it would seem that
33 the paragraph beginning "I have seen a video tape" down to
34 the end of the quotes, "USDA inspected meat". The last
35 sentence is no doubt borne of experience, or might be said
36 to be.
37
38 Then, my Lord, the bottom paragraph on the page, which goes
39 on to the following page, beginning with the words "my
40 cousin is a rodeo contractor", and the next sentence, "he
41 told me", and the final sentence of that -----
42
43 MR. JUSTICE BELL: The first sentence may or may not be.
44
45 MR. RAMPTON: I have followed your Lordship's guidance in past
46 examples of this. If it is a "may" or "may not be", then
47 we have to wait and see. But where, on its face, it
48 plainly is a hearsay, then I believe I ought to object
49 now. The first complete sentence on the next page, again,
50 is quite evidently borne of, what shall we say, what
51 Mr. Lyman has been told; and the whole of the next
52 paragraph is, once again, when one reads to the end of it,
53 quite clearly hearsay -- if one sees the words "and they
54 tell" -----
55
56 MR. JUSTICE BELL: Where is that?
57
58 MR. RAMPTON: The one beginning "When I saw the type of cattle",
59 that is fine, he was surprised; and then one finds out how
60 he knew in the next two sentences -- sorry, next three
19
1 sentences. He talked, he asked, he was told and he
2 believes.
3
4 MR. JUSTICE BELL: Do you want to respond to that now, or do you
5 want the break?
6
7 MR. MORRIS: Yes. Well, for a start, Mr. Lyman clearly knows
8 the industry inside out and upside down; and all of
9 McDonald's witnesses that have appeared, who claim to know
10 about the industry, have been able to comment on matters of
11 practices and what -----
12
13 MR. JUSTICE BELL: That may be in relation to some of it. But
14 what do you say about the parts which, on the face of it,
15 appear to be what someone else has told Mr. Lyman?
16
17 MR. MORRIS: If Mr. Lyman is someone in business and he has been
18 approached by the beef processor, and the beef processor
19 says: "We supply McDonald's restaurant chain", then that is
20 an industry transaction that is being put to Mr. Lyman. It
21 is not -- it is relevant, and it cannot be -- I mean, it
22 may be a matter of weight, but it is not hearsay, or
23 "someone told me this". It is a transaction that has been
24 contemplated; and, therefore, it is significant.
25
26 The next one, the video of the United States senator,
27 "imported meat from Central America", I think that is also
28 a question of weight, because he is not saying -- he is
29 saying -- he is not saying -- he is saying what he saw. It
30 is the fact that he saw this video. What weight you give
31 to that is another matter, but it is clearly describing
32 what he saw and how that related to his experience of the
33 industry as a whole. I have to ask him what the manifest
34 is.
35
36 As far as the Mexican beef imports to the southern states
37 and into Montana, Mr. Lyman said this is something that he
38 actually had inspected or viewed and visited himself in
39 terms of, as he says in the first full paragraph on the
40 second page; and I believe that he should be entitled, as
41 somebody who is clearly an expert on the industry, to
42 gather information when he visits a slaughter plant or a
43 feedlot about the origins of the beef.
44
45 Again, I think that is something which Mr. Rampton could
46 investigate, for Mr. Lyman to test, and it is a matter of
47 weight after that. But he has clearly expressed what he
48 saw and what he understood the situation to be. I wanted
49 to ask him about the type of cattle, as well, that he
50 viewed.
51
52 MS. STEEL: If I could just -- I will not add anything to the
53 point about McDonald's, the first paragraph Mr. Rampton
54 objects to. I agree with what Mr. Morris said. With
55 respect to the other paragraphs, I mean, basically, in this
56 kind of field, all expert knowledge is going to be,
57 obviously, partly from what you witness; but to find out
58 about where things come from and matters such as that, it
59 is all going to be based on what you are told by other
60 people in the industry; and I mean, basically, I think the
20
1 situation is that it is because of the way Mr. Lyman has
2 expressed it, it sounds as though it is hearsay, but if we
3 had been lawyers taking a statement from Mr. Lyman we might
4 have encouraged him to express it in a different way which
5 is: "From my knowledge, I am aware that such and such
6 happens", and then it would have been allowed.
7
8 The example about his cousin being a rodeo contractor, and
9 those parts, I am aware that that is just an example of
10 that trade which Mr. Lyman is aware of on a wider basis
11 through his expertise and knowledge of the cattle industry;
12 and, really, that was just put in as an example of that
13 practice.
14
15 I mean, I do not know but, for example, when Dr. Gregory
16 was giving evidence, he said things that had been told to
17 him by the slaughterhouses when he visited them; and
18 I think that is fairly commonplace, for experts to glean
19 information on the industry by talking to the people who
20 are involved in the industry, to build on the knowledge
21 that they already have and to evaluate it; and I think
22 that, basically, that is what this is and, obviously, for
23 that reason, it should be allowed, because it comes within
24 Mr. Lyman's area of expertise.
25
26 MR. JUSTICE BELL: Yes. Thank you. In my view, the words in
27 the third paragraph of Mr. Lyman's statement dated
28 24th February 1996, which run from "who claimed"
29 to "restaurant chain", are clearly hearsay. They cannot be
30 adduced as evidence of the truth of the elements of alleged
31 fact which they contain, and I can see no other purpose in
32 introducing them, whether Mr. Lyman is an expert or not.
33 So, I propose to strike from Mr. Lyman's statement those
34 words, and they should not be read.
35
36 So far as the fifth paragraph is concerned, that is the
37 video tape of a ship, I see no reason why Mr. Lyman should
38 not say what he actually saw on the film, just as one could
39 look at a photograph to see what that portrays. But in so
40 far as anything which appears in that paragraph comes from
41 what he heard someone speaking on the film say or some
42 subtitle, that, again, would be hearsay and would not be
43 admissible. But I am prepared to wait and see about that.
44
45 The part which it seems to me is most susceptible to being
46 hearsay are the words "viewing imported meat from
47 Central America" because it appears to me that that may
48 come from something which was said on the film; whereas
49 saying that there was no label on the boxes which appear in
50 the film would more obviously be discernible from seeing
51 the photographic image of the boxes themselves. But I will
52 wait and see about that, and if some hearsay slips in
53 because it is unavoidable, then so be it.
54
55 When we come to Mr. Lyman's cousin, at the bottom of the
56 page, at the moment I see no objection to the third
57 sentence, "My cousin is a rodeo contractor" down to "for
58 use in American rodeos", because that may come from
59 Mr. Lyman's extensive experience of what he has observed so
60 far as his cousin's business is concerned, rather than
21
1 anything which was directly said. But from the words "he
2 told me every year" down to "the same problem", that is the
3 end of that paragraph, that is clearly, it seems to me,
4 hearsay. The last sentence depends upon the hearsay which
5 came before it. Again, whether Mr. Lyman is or is not an
6 expert, the real purpose of having those sentences in, if
7 they go in, is as evidence of the truth of what they
8 contain, and that is not permissible, their being hearsay.
9
10 The same applies to the words in the next paragraph, from
11 "when I talked to the operators" down to "as far away as
12 Central America".
13
14 So what I have struck out at the moment are the words "who
15 claim" to "restaurant chain", "he told me every year" to
16 "face the same problem", and "when I talked to the
17 operators" down to "Central America".
18
19 It may be that because the Defendants have not taken
20 objection when the Plaintiffs have called witnesses, some
21 hearsay has come in when the Plaintiffs' witnesses have
22 been giving evidence, whether they have been experts or
23 witnesses of pure fact. But when I come to consider the
24 evidence and my conclusions from it, at the end of the day,
25 I will have to be acute to deciding then what is hearsay
26 and, therefore, cannot be relied upon as evidence of the
27 truth of what was said.
28
29 Objection has been taken by Mr. Rampton to the passages
30 which I have struck out; and, for the reasons which I have
31 sought to give, those objections seem to be well founded.
32
33 So, Mr. Morris, by all means, read the supplemental
34 statement with those limited extracts struck out. They
35 could not have helped me to any conclusion in the case in
36 any event. But that is the position as I see it, so far as
37 admissibility is concerned. We will take the five minute
38 break now and come back at 12 o'clock.
39
40 (Short adjournment)
41
42 MR. MORRIS: Continuing to read the supplementary statement:
43
44 "This is a supplementary statement on the US beef
45 industry.
46
47 "I was involved in the cattle production industry for over
48 forty years in the state of Montana in the United States of
49 America. During this time I operated a large feeding
50 facility that fed all types of cattle."
51
52 If there is anything you want to clarify, do stop me at the
53 end of a paragraph.
54
55 "In the 1970s I was approached by a beef processor who
56 claimed they supplied the McDonald's restaurant chain.
57 They wanted me to buy beef and have them ready for
58 slaughter on a schedule of their determination; the only
59 consideration was the price and the fatness of the
60 animals. I was surprised there were no stipulations on
22
1 drugs, implants, type of animal, or country of origin.
2 I was uninterested in this arrangement because I was
3 expected to bear the majority of the financial risk to
4 ensure an even supply of animals. I knew of no one who
5 agreed to this arrangement."
6 A. Let me just say one thing here; that it was normal in
7 the industry that business was done on a verbal basis. We
8 did not require people to bring us documentation of what
9 they said. We dealt with thousands and thousands of
10 dollars of transactions on the telephone or with a
11 handshake. There were not contracts; there were not
12 lawyers involved. This was a normal type of production.
13
14 MR. JUSTICE BELL: Yes. Carry on reading, Mr. Morris.
15
16 MR. MORRIS: Right. "When I was involved in the cattle
17 business, I saw, many times, meat shipped in boxes very
18 prominently labelled 'inspected by USDA', but also
19 labelled, in very fine print, that it was a product
20 produced in Central America. I saw these kind of products
21 delivered to the public school system for the lunch
22 programmes that were paid for by the US government.
23 Determining the country of original was very difficult if
24 you did not know what you were looking for.
25
26 "I have seen video tape of a United States Senator in a
27 hold of a ship viewing imported meat from Central America.
28 This meat was in boxes that contained no label at all
29 stating the country of origin, and after it was inspected
30 by USDA inspectors, the only label it had was 'USDA
31 inspected meat'. To track imported meat without the
32 support of the company that held the manifest, in my
33 opinion, would be almost impossible."
34
35 Can you just explain what the manifest is? I think it is
36 pretty obvious.
37 A. This case was a very hot topic in the beef industry
38 because of imported meat. That video tape was shot under
39 the direction of Senator John Melcher.
40
41 MR. JUSTICE BELL: None of that makes a blind bit of difference,
42 whether it is admissible in evidence. What I am more
43 interested in is what it was which told you that the meat
44 was imported from Central America. Was it something you
45 heard on the commentary, or was it -----
46 A. It was a personal conversation with a personal friend,
47 which was Senator John Melcher of the State of Montana.
48
49 MR. JUSTICE BELL: Leave it there then.
50
51 MR. MORRIS: You said that there was a controversy at this
52 time. Was there investigation by Congress representatives,
53 or whatever, about the problem of imported beef not being
54 labelled properly?
55 A. Senator John Melcher at that time was the chairman of a
56 committee that was looking into the importation of meat and
57 the labelling and the thing, and that video was part of
58 that. I saw that video myself.
59
60 Q. Right. But in terms of the -- you are aware that -- is it
23
1 the case that you were aware that there was some kind of
2 industry investigation, Congress investigation, into this
3 problem?
4 A. Yes.
5
6 Q. What was the opinion of Congress?
7
8 MR. JUSTICE BELL: I am not interested in that. I told
9 Mr. Rampton that I did not want to hear his witnesses
10 telling me what President Clinton thought of the topic
11 where the answer was likely to be in favour of McDonald's;
12 otherwise, he would not have introduced it; and I am not
13 interested in this. I will form my own opinion without the
14 help of Congress, thank you very much.
15
16 (To the witness) No disrespect to your President or your
17 very fine democratic institutions, but I have to make up my
18 own mind. I asked Mr. Rampton on the previous occasion
19 whether President Clinton was going to write my judgment
20 for me, and the answer was "no", so I did not want to know
21 what he thought about it.
22
23 THE WITNESS: The colonies bear no disregard for you.
24
25 MR. MORRIS: Just say what the manifest is?
26 A. The manifest, basically, is a document that lists the
27 cargo, what it is and where it comes from.
28
29 Q. Who keeps hold of that?
30 A. The manifest should be held in several copies:
31 number 1, it would be the company that was doing the
32 importing; number 2, the company that was doing the
33 transportation; and number 3, the group that would end up
34 with the product when it was delivered.
35
36 Q. Continuing to read: "In Montana, I saw thousands of truck
37 loads of fresh beef imported from Canada; for years most of
38 it was in hanging sides. This limited the amount and how
39 far it could be shipped. As 'box beef' became the popular
40 shipping method, the area of the world that could supply it
41 grew. Often, the boxes in which the meat was shipped had
42 no label, and you would have no idea of the country of
43 origin without the manifest. I'm not sure any of the meat
44 came from Central America, but I saw meat that was produced
45 in Australia which is much further away, so for the
46 potential for beef to be imported from Central America
47 certainly existed.
48
49 "In Montana, we would occasionally get animals in our
50 feeding facility that were purchased in Mexico. These
51 animals were purchased to be used as rodeo stock, but when
52 they failed to perform or were injured, they would be
53 placed in the food supply system. My cousin is a rodeo
54 contractor, and every year he makes arrangements with stock
55 procurers in Mexico to gather acceptable animals for use in
56 American rodeos."
57 A. For someone in the business, it is very easy to tell
58 the difference of what type of animals are being fed,
59 whether they are cattle coming from the northern plains,
60 whether they are coming from what they call okies, or
24
1 whether they are coming from Mexico. The cattle, the
2 confirmation, the view of them are totally different.
3 Anybody in the business can readily tell where an animal
4 comes from and what part of the country they came from.
5
6 Q. Continuing to read -----
7
8 MS. STEEL: Can I just ask: the use of cattle from other
9 countries, the shipping in of live cattle from other
10 countries, is that something that is widely known about
11 through the industry?
12 A. Yes.
13
14 Q. And does that include Central America?
15 A. The numbers would be very limited from Central America,
16 but the potential exists.
17
18 MR. JUSTICE BELL: Just pause a minute. I understand why
19 animals that are needed for rodeos are shipped in live,
20 because they are no use unless they are alive; and I can
21 understand that the Mexican animal, which I guess is a
22 skinnier and more agile animal -- is that right?
23 A. The horns are the main thing.
24
25 Q. The horns are the main thing; but it is probably lighter as
26 well, is it not?
27 A. Absolutely.
28
29 Q. It is more suitable for rodeo use; and I can understand
30 that you might ship live cattle in for breeding purposes
31 because, again, you need them live. But what other
32 purposes would you need live cattle from long distances for
33 in the United States?
34 A. The reason is because they are very cheap and
35 they -----
36
37 Q. But live, you see, as opposed to dead?
38 A. Because they are not in shape to market. They need to
39 be brought in and fed, and they need to add weight to those
40 cattle. All of the cattle from south of the border are
41 extremely thin; they are not well marketable without being
42 fed. Feedlots in the southern United States are almost
43 totally full of cattle that are coming from south of the
44 border because of the price, and that they can make a
45 profit on them.
46
47 MR. MORRIS: Continuing to read: "While I was associated with
48 the meat industry, I saw meat suppliers run out of product
49 many times."
50
51 Sorry, did I read the previous sentence? Sorry. Going
52 back:
53
54 "When I saw the type of cattle being fed in the southern
55 feedlots in Arizona and Texas, I was surprised at the
56 number of Mexican cattle represented.
57
58 "While I was associated with the meat industry, I saw meat
59 suppliers run out of product many times. Consequently,
60 they would source product wherever they could in order to
25
1 meet their contracts. Ground beef in bulk or patty form is
2 impossible to trace to the original carcass. My experience
3 has shown me that unless you have purchased the animal,
4 slaughtered it and processed it yourself, the country of
5 origin could be in doubt.
6
7 "During the E.Coli outbreak in the United States fast food
8 hamburgers, even the government could not track the origin
9 of all the meat that was used in the ground beef. The
10 industry is not geared to track all supplies, and a flat
11 statement that no product was sourced in a specific country
12 would be almost impossible to prove."
13
14 I just have a couple of questions. You would verify what I
15 have read out from your statement?
16 A. Yes.
17
18 MR. JUSTICE BELL: That, again, is Jack-in-the-box, the -----
19 A. That is correct.
20
21 MR. MORRIS: When you said that they would source product from
22 wherever they could in order to meet their contracts, could
23 you just explain, from your own experience, what actually
24 happens in the industry, in reality?
25 A. What happens in the industry is that processors will
26 have contracts, and the contracts will state fat content,
27 size of patties, things like that. When it is under
28 production -- and remember that when you go into processing
29 plants, most of the employees are not over educated, and
30 many of them with fourth, fifth grade educations -- their
31 job is basically to take product, put it into the grinders,
32 grind it up and take out the product. When they would get
33 to a point that they were out of basic product to go into
34 the grinders, they would be on the phone calling anybody
35 that they could get the product from; and I saw that many
36 processors covered each other in the industry, and it was
37 not unusual for one to transfer meat back and forth to meet
38 pressing contracts. It was done all of the time. Much of
39 that product, it would have been impossible to determine
40 where it came from.
41
42 Q. If a process plant uses some imported beef but has a
43 specification for another supplier not to use imported
44 beef, have you any comment about that?
45 A. If a processor, in my opinion, is taking in imported
46 product and they have contracts that call for the exclusion
47 of imported products, knowing what I know about the labour
48 practices within processing plants, I would believe that it
49 would be impossible to guarantee that the type of employees
50 that they would have would always have that product
51 segregated. I would believe that that would be the
52 furthest stretch of imagination I could imagine.
53
54 Q. We have seen in this case -- and Mr. Rampton may indeed put
55 it to you, I do not know -- that McDonald's specifications
56 have included the phrase -- for their processing companies,
57 of which they had over 150 before the mid 1980s and got
58 that down to five by the mid 1980s -- they had a
59 specification saying "no imported beef". Have you got any
60 comment on that?
26
1 A. I would say that from what I know on processing plants
2 and the ones that I dealt with, I would assume for them
3 that that terminology and the thing was that they were not
4 out sourcing their product and importing it into the
5 country.
6
7 I saw many processing plants that had product that, no
8 doubt in my mind, was imported, whether they imported it or
9 whether they ended up being a secondary recipient of that
10 that was imported. But I would say that what I saw in that
11 contract, I think that there would be very little concern
12 about a plant that was one of 120 or 50 that was
13 supplying. I do not believe that would have a great
14 relevancy to them.
15
16 MR. MORRIS: I want to see if we have any further questions.
17 I believe we have finished.
18
19 MR. JUSTICE BELL: Yes.
20
21 MR. MORRIS: Just one thing from the original London Greenpeace
22 fact sheet. One of the sentences said: "In the
23 slaughterhouse, animals often struggle to escape." Have
24 you got any comment on that?
25 A. I have seen animals that had the opportunity to
26 partially escape. They are absolutely terrified, almost
27 impossible to recapture. The only way that they could be
28 calmed is to be killed. They hunted them down, whether
29 they were on the kill floor or whether they were in the
30 slaughterhouse proper. There is no doubt that those
31 animals, when they went to slaughter, were terrified and
32 would do anything within their power to escape -- no doubt
33 about it.
34
35 MR. MORRIS: No further questions. Thank you very much.
36
37 MR. JUSTICE BELL: Thank you.
38
39 Cross-examined by MR. RAMPTON Q.C.
40
41 MR. RAMPTON: Mr. Lyman, do you think you could please tell me
42 what your understanding is of US law in relation to the
43 labelling of imported meat?
44 A. US law has several different ramifications. Number 1
45 is that it states that anything that comes in labelled,
46 carrying a label, the label should stay with it. It also
47 states that our acceptance is of the general practice of
48 the country of origin. If the country of origin's practice
49 is to stamp on the outside of the box that it is a product
50 of that country, we will accept that; it does not have to
51 be in the meat.
52
53 So there are various different levels of our law and what
54 it is. FIS, when they talk about it, it says that any meat
55 that is labelled "USDA inspected" will be treated, without
56 any other label on it, as domestic product.
57
58 Q. On what do you base the last part of that answer? Have you
59 read the regulations?
60 A. I have read a memo to that extent, yes.
27
1
2 Q. That is not the same thing as the regulations themselves.
3 Do you not accept that this is the position -- you are the
4 expert, apparently, Mr. Lyman -- under US law, all meat
5 which is imported into the United States has to have on it
6 (the meat) a label stating its country of origin, in the
7 words "product of" and then the name of the country; those
8 words have to appear on the immediate container of the meat
9 and also on its outside container, if it has one. Do you
10 agree with that?
11 A. I agree that it will be on the container, but I have
12 seen meat that does not have that on it.
13
14 Q. Do you agree that it must carry that labelling until such
15 time as it is further processed within the continental
16 boundaries or the jurisdictional boundaries of the
17 United States?
18 A. The normal practice in the US to is to almost totally
19 disregard that.
20
21 Q. But you agree that your understanding of the law of the
22 your country is the same as mine?
23 A. The law, as I understand it, is that what the country
24 of origin states on it, we are willing to accept that is
25 there. When the Federal Inspection Service looks at it,
26 their regulation is that, barring anything else, the stamp
27 of "USDA inspected" will be treated as domestic product.
28
29 Q. But only after processing; only after processing can it
30 lose its country of origin label; do you agree?
31 A. It all depends on how it is handled. If it was taken
32 out of the box in the processing plant and was not ground
33 or cut and was transported again, in my opinion, it would
34 lose the country of origin.
35
36 Q. Why, Mr. Lyman, in your first statement, did you write this
37 -- and I am looking at the last paragraph on the second
38 page; it is very short, so I do not ask you to look at it,
39 but you may if you wish to do so -- "North America imports
40 about one-third of all the beef exports in the world.
41 After it clears any border inspection, it is treated with
42 the same label as domestic production, and in most cases
43 even the meat handlers could not identify where the product
44 was produced"? That is wrong, is it not?
45 A. That is normally what is happening in the industry.
46
47 Q. How do you say that it happens in the industry if the legal
48 requirement is that if it comes from, let us say, Costa
49 Rica, the meat itself, the box and the outside container,
50 must all carry the information product of Costa Rica? How
51 is it that it happens in the industry in the way you
52 describe in this paragraph?
53 A. I have never in my entire lifetime in the cattle
54 business ever seen the Federal Government enforce a
55 regulation on labelling. What happens in the industry is
56 my experience that I have tried to represent in my
57 statement.
58
59 Q. Can you tell me, when you speak of ignorant, ill-educated
60 operatives telephoning round in the event of a shortage ---
28
1
2 MS. STEEL: I do not think that is quite what he said.
3
4 MR. RAMPTON: -- telephoning round in the event of a shortage at
5 a processing plant -----
6
7 MR. JUSTICE BELL: No, I did not understand that to be the
8 situation.
9
10 MR. RAMPTON: He said that they were people of poor education,
11 very often.
12
13 MR. JUSTICE BELL: (To the witness) Was that the people phoning
14 round who were of poor education, or the people working in
15 the plant you said who were -----
16 A. The people working in the plant were, for the most
17 part, very poorly educated. The people making the phone
18 calls were not the fourth grade educated people.
19
20 MR. RAMPTON: Who is that, when the meat arrives at a processing
21 plant, who is it, if anybody, that would look to see what
22 its label said?
23 A. My experience would be no one would care.
24
25 Q. Right. Now then, I would like you to give me the names of
26 the plants you are talking about, please?
27 A. The plants that I have been to?
28
29 Q. Yes.
30 A. I have been to plants in Pascoe, Washington. I have
31 been to plants in Sioux Falls, South Dakota. I have been
32 to plants in Denver, Colorado, Salt Lake City, Nebraska,
33 Kansas, Texas. Those are areas, plants that I have been
34 to.
35
36 Q. When you say "plants", do you mean to say plants that take
37 in fresh beef or frozen beef and turn it into some kind of
38 other form, let us say, beef patties or ground beef?
39 A. They would take in both fresh and ground, depending on
40 how they were set up; and what I am trying to represent is
41 the industry as I know it.
42
43 Q. As you knew it. How closely are you involved in the
44 industry now?
45 A. I would say that I do not travel in as many plants
46 today as I used it to. Given the opportunity, I still go
47 to them. I have a great interest in what is happening.
48 I believe that it is going to be an integral part of what I
49 see happening in the future.
50
51 Q. You would perhaps agree with this, Mr. Lyman, that if the
52 person or the plant or the company that processes the meat
53 for supply to food retailers, by grinding it up, knows
54 where the cattle that it is using the meat from are
55 slaughtered, then we can forget all about this labelling
56 business, can we not?
57 A. If they know that the meat is slaughtered domestically,
58 yes.
59
60 MR. RAMPTON: Thank you, Mr. Lyman.
29
1
2 MR. JUSTICE BELL: Thank you, Mr. Lyman. Just leave the volume
3 there.
4
5 (The witness withdrew)
6
7 MR. JUSTICE BELL: Now, what are we going to do next?
8
9 MR. MORRIS: I do not know, actually.
10
11 MS. STEEL: I grabbed the papers I could a bit hastily on my
12 way here. They are not sorted out so, certainly before
13 lunch, I am not ready to go -----
14
15 MR. JUSTICE BELL: The things we have got to do, sooner rather
16 than later -- there is the question of your amended
17 defence, which I have not looked at but I will look at as
18 soon as we have a break. If there is anything which you
19 want to say with regard to the various discovery points in
20 addition to what Mr. Morris wants to say -- and my
21 recollection is that Mr. Morris had not replied to
22 Mr. Rampton in relation to the question of power, so far as
23 suppliers of patties are concerned, in Costa Rica,
24 Guatemala and Brazil -- because quite apart from any
25 question of whether I think it would be useful to have the
26 documents which you want, consisting of lists of farms and
27 maps of them, there is the question of whether I can
28 usefully order discovery if the documents are not in the
29 power of the First Plaintiff. We can forget the Second
30 Plaintiff for present purposes.
31
32 I gave a ruling on the principles which I would apply if
33 that question arose -- I think it was 27th February last
34 year. Obviously, I must stick to those principles. It is
35 just a question of whether you or Mr. Morris have an
36 argument in relation to the particular facts relating to
37 suppliers in Costa Rica, Guatemala and Brazil.
38
39 I cannot remember whether you were here, but Mr. Morris
40 will remember that Mr. Cesca, I think, was questioned about
41 some of the forms of specifications. But I actually do not
42 have any documentation -- correct me if I am wrong --
43 direct documentation in relation to the position of
44 suppliers in Costa Rica, Guatemala and Brazil. But however
45 that may be, you have a right to say anything you want
46 about that.
47
48 MS. STEEL: I was just going to say: is there any dispute that
49 they are joint ventures?
50
51 MR. JUSTICE BELL: No, there is not. But Mr. Rampton referred
52 to two cases, which I referred to in my ruling last year,
53 that even where a subsidiary is 100 per cent owned, that
54 does not mean that the company which owns it has power over
55 the documents in its subsidiary's possession. It surprised
56 me when I first read it, but that appears to be the law.
57
58 So Mr. Rampton says it does not matter that Braslo and,
59 what I will call for convenience, McDonald's of Costa Rica,
60 McDonald's of Guatemala -- although the companies actually
30
1 have different and more formal names than that -- may be
2 partly owned by the First Plaintiff, it does not follow
3 that the First Plaintiff had power over them.
4
5 MR. RAMPTON: Sorry -- not Braslo. Braslo is the supplier of
6 McDonald's Brazil.
7
8 MR. JUSTICE BELL: Yes. Sorry. The Brazilian company, whose
9 name I still have not been told. I can get the Costa Rica
10 one and the Guatemala one off letters, but I have not --
11 maybe someone will refer me to it -- but I still, for
12 myself, cannot recall a document which gives the exact
13 identity of the Brazilian subsidiary.
14
15 MS. STEEL: Right.
16
17 MR. JUSTICE BELL: The title, the actual name does not matter;
18 it is the argument which matters.
19
20 MS. STEEL: Did not Mr. Rampton say something about that joint
21 venture partnerships were -- that the law on their being in
22 possession or power or having the power over documents was
23 different to subsidiaries, and it was held that they were
24 in their power, or something like that?
25
26 MR. JUSTICE BELL: No, he did not say that. But joint venture
27 partnership does not take you very far if it is the
28 equivalent of our limited companies; and both the
29 Costa Rica subsidiary (I will call it) and the Guatemalan
30 subsidiary (I will call it) are companies. They have got
31 names with "SA" afterwards, which would be the equivalent
32 of our Plc or Company Limited, in a Spanish speaking
33 country.
34
35 Mr. Rampton's argument is that it does not matter that the
36 First Plaintiff owns a substantial number of shares in such
37 a company; it would not matter if the First Plaintiff owned
38 all the shares in that company; that does not mean that it
39 has an irresistible legal right to call for documents for
40 the purposes of this litigation.
41
42 That is quite apart from whether I think it would be useful
43 to see the documents; and I must deal with both when I give
44 a judgment on it. I will deal with the question of power,
45 quite apart from the question of whether it would be useful
46 for me to see them.
47
48 MR. MORRIS: I mean, I had not actually remembered that we had
49 to come back on that, but I think I will probably be able
50 to come up to speed on that after the lunch break, if we
51 have a little bit longer for lunch. The matters of the
52 amendments to the defence and to the Statement of Claim, in
53 my -----
54
55 MR. JUSTICE BELL: The second matter -- to interrupt you -- the
56 second matter which I have very much in mind is
57 Mr. Rampton's application to re-amend the Statement of
58 Claim with regard to alleged publication.
59
60 MR. MORRIS: Yes. We are prepared to deal with that this week.
31
1 I think that you might want to consider -- I do not know if
2 you want to hear both applications at the same time, as our
3 application to amend our defence covers similar ground.
4 Maybe it would be better to deal with that, maybe, this
5 Thursday or Friday, so the parties have time to consider.
6 I mean, we can deal with that this week. I certainly would
7 not want to do it afternoon.
8
9 MR. RAMPTON: My Lord, I think we should do it tomorrow. I do
10 not see why we should wait till Thursday. It is only
11 Tuesday today.
12
13 MR. JUSTICE BELL: What have we got for the rest ---
14
15 MR. RAMPTON: We have got nothing.
16
17 MR. JUSTICE BELL: -- of the term?
18
19 MR. MORRIS: We have three days this week.
20
21 MR. JUSTICE BELL: Yes. But what else have we got,
22 Mr. Rampton?
23
24 MR. RAMPTON: We have nothing, my Lord. We have the Defendants'
25 response to my application to reamend. Whether I have the
26 time to respond to their application to amend the defence
27 -- or re-re-reamend the defence, I should say -- having
28 only just received the documents, is perhaps beside the
29 point. They should certainly by now be in a position to
30 respond to my application to reamend; and I would suggest
31 that if we do not get to that this afternoon, we should do
32 it first thing tomorrow morning. Then there is nothing,
33 apart from a discussion on scheduling, on which I will have
34 something to say to your Lordship in due course, when it is
35 convenient to your Lordship. There is nothing left, so far
36 as this court is concerned, before the end of term.
37
38 MR. JUSTICE BELL: No. That is why I ask what else there is;
39 because if that is the situation, if I am asked by the
40 Defendants, for instance, to hear the argument on
41 publication on Thursday and Friday, why must I start it
42 tomorrow if it is not going to make any difference to the
43 rest of the schedule for the rest of term?
44
45 MR. RAMPTON: Because, my Lord, normally speaking, one sits on
46 consecutive days and one tries to arrange one's calendar
47 accordingly.
48
49 MR. JUSTICE BELL: One certainly cannot say one has done that in
50 this case.
51
52 MR. RAMPTON: I know that. If the Defendants put forward a good
53 reason -- I know one reason why they do not want to sit
54 tomorrow, because I have just been told about it; it has
55 nothing to do with the proceedings in this court -- but if
56 they say, "Well, we are not actually ready", or something
57 like that, and satisfy your Lordship that that is right,
58 then I can see there might be an argument for sitting on
59 Thursday.
60
32
1 MR. JUSTICE BELL: If we sat on Thursday and Friday, were it
2 necessary, you would have had time to consider the amended
3 defence, would you not?
4
5 MR. RAMPTON: Yes.
6
7 MR. JUSTICE BELL: Unless it has something quite
8 extraordinary -----
9
10 MR. RAMPTON: I can certainly do it by tomorrow. But I do,
11 my Lord, have a resistance to not sitting when we can sit,
12 because one never knows what may come up in the future,
13 particularly if the real reason why the Defendants do not
14 want to sit is that they are having a press conference with
15 Mr. Lyman at 10 o'clock tomorrow morning.
16
17 MS. STEEL: Actually, I have never said I am going to be there,
18 and I am not bothered whether we sit tomorrow. But there
19 are quite a few things to go over, and there are a lot of
20 areas where the two matters do overlap and it would be a
21 good idea to hear them both at the same time.
22
23 MR. JUSTICE BELL: Do not worry about that too much for the
24 moment. What is the state of play? I am going to adjourn
25 in a moment, and, if you ask me to, I will adjourn until
26 something like half past two, so that you can come back on
27 the rest of discovery. Would that help?
28
29 MR. MORRIS: Yes, that would help.
30
31 MS. STEEL: Yes.
32
33 MR. JUSTICE BELL: Then, suppose we deal with the argument on
34 discovery, carrying on at half past two, that we come back
35 to anything you want to say about your proposed amended
36 defence and reamendment of the Statement of Claim on
37 Thursday morning; then, save for me giving judgment on
38 those matters and discovery at some stage before the end of
39 term, that is it for this term. You are fully engaged
40 Tuesday of next week, anyway.
41
42 What I do want to discuss, either this afternoon, if there
43 is time, or on Thursday and Friday in addition, is the
44 remaining evidence.
45
46 MS. STEEL: The schedule.
47
48 MR. JUSTICE BELL: Yes -- because we have got to get to grips
49 with that. So that everyone can bear it in mind, I want,
50 apart from anything else, parties to turn their mind to how
51 we go about the remainder of the case, what the general
52 structure is; whether we try and follow the procedure which
53 we have tried to follow so far, and which was my idea
54 originally, of dealing with topics; or whether now at this
55 stage, with a fair number of witnesses to go but a limited
56 number in the overall context of this case, it is easier
57 for Mr. Rampton to call the remainder of his witnesses and
58 then for you to call all your witnesses; or whether you
59 would prefer to get on with your environmental witnesses
60 and then deal with publication and counterclaim, which it
33
1 seems to me have to be taken together last of all.
2
3 Unless there is anything which anyone must say about that
4 now, I suggest that we adjourn till half past two; and
5 whatever else you do this afternoon, complete your argument
6 on discovery, including the question of power, so I can go
7 away and think about that tomorrow.
8
9 (Luncheon Adjournment)
10
11 MR. MORRIS: I am going to come back on the power and control
12 thing first, and the general application for discovery.
13 Helen is going to add a couple of things. I just want to
14 say that there are a couple of outstanding discovery
15 matters as well; in particular, numbers 9 and 10 on your
16 list, the Heathrow and the video, which we will bring up.
17
18 MR. JUSTICE BELL: Yes. I have left my list in my room.
19 Remind me which 9 and 10 are.
20
21 MR. MORRIS: 9 was the Heathrow documents and 10 was the
22 US video.
23
24 MR. JUSTICE BELL: I would like you to concentrate on the
25 discovery this afternoon, so we can finish that; and if
26 there are any loose ends like that, we can come back to
27 them on Thursday.
28
29 MR. MORRIS: Yes.
30
31 MR. JUSTICE BELL: I make no bones about the reason. If you can
32 finish your argument this afternoon on discovery, and
33 Ms. Steel, I can write my ruling tomorrow.
34
35 MR. MORRIS: That is great, yes. In short, just responding to
36 Mr. Rampton in general, it is clear to us that there is
37 live issue on this matter. We are specifically talking
38 about sources of supply in rainforest countries. It is not
39 a fishing expedition, because not only have the -- well,
40 firstly, because the documents that we are applying for
41 have been relied upon by the Plaintiffs in that they have
42 seen them, they have relied upon them, they have made
43 statements about the source of their supplies based on what
44 they have been told and what they have been shown, which
45 they did not have to elect to do. They could have said:
46 "It is up to you." So we are entitled to see those
47 documents, if they are in their possession, power and
48 control, or ever have been. If they have ever been in
49 their possession power and control, they should be listed
50 in any event.
51
52 MR. JUSTICE BELL: There is no point in listing on the lists of
53 farms and the maps, because that has, effectively, have
54 been done by Mr. Cesca in his evidence, has it not?
55
56 MR. MORRIS: That is true. Yes, that is true -- although if
57 they went out of their possession, power and control,
58 I presume we would be entitled to know when and why, as has
59 happened in the past, they have been ordered to do the
60 same.
34
1
2 We could argue that interrogatories would be an alternative
3 form, if the documents have gone out of the possession of
4 the Plaintiff. But the knowledge in them is in the
5 possession, power -- if the knowledge in them is possessed
6 by any agent of the first or second party, then that would
7 be a way of tying down that knowledge. We hope it will not
8 come to that.
9
10 Mr. Rampton did say quite a lot of things which were
11 confusing the suppliers with the subsidiaries, and it is
12 clear that we are asking for the documents in the
13 possession, power and control of the Plaintiffs, including
14 the subsidiaries, because we accept -- well, we do not
15 accept the documents in the hand of suppliers are not in
16 their possession, power and control, but we know which way
17 the wind is blowing on that one, so -----
18
19 MR. JUSTICE BELL: It is the way the Court of Appeal and House
20 of Lords which -- I mean, as I understand the authorities,
21 the Lonrho and Shell cases, even though the holding
22 company -- that is the say, the First Plaintiff in this
23 case -- holds 100 per cent of the shares in the subsidiary,
24 documents which the subsidiary has are only in the power of
25 the holding company if it has an irresistible legal right
26 to demand them; and it does not matter, as I said in my
27 previous ruling, that the moment Mr. Cesca, or whoever on
28 behalf of the McDonald's Corporation, the moment he asks
29 the subsidiary for a copy of that document it would have
30 been provided; that does not mean that the document is in
31 the power of the First Plaintiff. As I said, it surprised
32 me when I first read that. But there we are.
33
34 MR. MORRIS: Yes. Well, we would argue on that that the
35 Plaintiffs should be ordered to pass on the relevant
36 documents that we have applied for that would have
37 satisfied you that are relevant, if they are in their
38 possession, power and control. Now, if the Plaintiffs want
39 to say:"We have been ordered to supply this document, let
40 us say, it is clearly in the hands of McDonald's
41 Costa Rica, for example, but here is the legal agreement
42 between McDonald's Costa Rica and McDonald's Corporation
43 and, as you can see, there is no indefeasible access to
44 documentation", that is fair enough, but it cannot possibly
45 be the case that a party applying for documents must be in
46 possession of a completely secret commercial licence
47 agreement between two parties, or whatever, before they can
48 ask for those documents.
49
50 So, the point is that it is up to the Plaintiffs to satisfy
51 the court that, despite everything that we have heard in
52 this case to the contrary, the subsidiaries or joint
53 venture partners, or whatever, of the McDonald's
54 Corporation suddenly are not under the control of that
55 body, or that there is no agreement for access to
56 documentation.
57
58 Coming on from that, Mr. Rampton did say that of course
59 they are bound by the specifications and they would have
60 the right of inspection related to specifications and the
35
1 carrying out of specifications. It is the Plaintiffs' case
2 that the sources of beef supplies are part of the
3 specifications binding, they say, on their subsidiaries and
4 suppliers, indeed; and specifically they say that their
5 specifications on sources relate to ex-rainforest land.
6
7 So, we are not asking for any documents from their
8 subsidiaries or their suppliers; we are asking for the ones
9 that are relevant to their specifications on beef sources.
10
11 There is one matter I wanted to add, which is about Anglo
12 supplying Braslo, which is -----
13
14 MR. JUSTICE BELL: I have got the letters in mind. There are
15 two letters, but they did not actually -- they are written
16 by Mr. Walker, or the one I particularly have in mind was
17 written by Mr. Walker. He said he did not actually know
18 what the commercial relationship, if any, was between Anglo
19 and Braslo; and I have got absolutely no evidence that
20 Anglo ever did supply Braslo, have I?
21
22 MR. MORRIS: He thought they did. That is what he said.
23
24 MR. JUSTICE BELL: Then he said he did not know.
25
26 MR. MORRIS: He said, "I did not know, but I think so."
27
28 MR. JUSTICE BELL: What evidence is that is actual supply.
29
30 MS. STEEL: It is the basis for a belief. I mean, perhaps --
31 I mean, Mr. Rampton mentioned this, I see from the
32 transcript of the Friday two weeks ago, Mr. Rampton
33 mentioned that we should plead it; and perhaps that is what
34 we should do, because we have got the basis for a genuine
35 belief that -----
36
37 MR. JUSTICE BELL: Leave aside the pleading for a moment. I
38 mean, what basis have I got for actually thinking there is
39 any evidence upon which one could rely at all that -----
40
41 MS. STEEL: The point I would make is that there is enough
42 evidence from what Mr. Walker said in the witness box and
43 from the letters which were disclosed to the court, which
44 clearly indicate that Braslo were seeking to get supplies
45 from Anglo. There is enough evidence to put a pleading;
46 and if there is a pleading, then discovery becomes relevant
47 to that.
48
49 MR. JUSTICE BELL: I do not know. You see, what Lord Justice
50 Neill said before the trial began is one thing. I am well
51 into this case now, and I am more concerned with if there
52 is any prospect of actually proving, not suspecting or
53 thinking might be the case.
54
55 Anyway, I have that point. Is there anything else, apart
56 from Mr. Walker's letter, is there anything else that you
57 can think of which might indicate that Anglo supplied beef
58 to Braslo?
59
60 MR. MORRIS: There was two plants that Mr. Cesca -----
36
1
2 MS. STEEL: I was going to come back to something that you said
3 in the transcript of day 229, where you mentioned that
4 there was no evidence of any other Anglo plant, except the
5 one at Barretos, and just to point out that Mr. Cesca's map
6 did mark two Anglo plants within the Amazonian frontier
7 region. I have actually got a note of where they are
8 somewhere, but I think I actually photocopied that section
9 of the map, so I can bring that in.
10
11 MR. JUSTICE BELL: You had better tell me which ones they are.
12 Have you got a copy of it?
13
14 MS. STEEL: I am not sure whether I have got it with me. It
15 will be on the transcript, because I remember asking
16 Mr. Cesca about it.
17
18 MR. RAMPTON: My Lord, I have never seen it, apart from very
19 briefly. I never got shown it in court, because there was
20 one of those private conversations going on. But I think
21 Mr. Cesca's original map is up there somewhere still;
22 I think he left it here. Mrs. Brinley-Codd knows where it
23 is.
24
25 MS. STEEL: That would be helpful.
26
27 MR. JUSTICE BELL: If you would not mind.
28
29 MS. STEEL: I can show you where they are.
30
31 MR. RAMPTON: I am afraid my eyes will not cope. I see
32 one -----
33
34 MR. JUSTICE BELL: Let us see if Mr. Morris or Ms. Steel can
35 help.
36
37 MR. RAMPTON: I see at one at a place called -- where he has,
38 somebody has written, "Anglo Beef", but I cannot see the
39 other one.
40
41 MR. JUSTICE BELL: Pursue that point. But what I am most
42 concerned about at the moment is, what evidence is there
43 that Anglo Refrigerifico SA, which is the Vestey company in
44 Brazil, ever supplied beef to Braslo for Braslo to process
45 into McDonald's burgers?
46
47 MS. STEEL: Can I just answer this question while I have my hand
48 on the map? It is the one at Santano do Araguari, and the
49 one at Gurupi. I have not got the blue map with me. I do
50 not know if you can see where they are?
51
52 MR. MORRIS: Gurupi was the one that was just north of
53 Goias State.
54
55 MS. STEEL: And Santana do Araguari is Para, I think.
56
57 MR. JUSTICE BELL: Yes. I would like to take that away with me
58 at the end of the day.
59
60 MR. RAMPTON: I am just going to put some sellotape on it.
37
1
2 MS. STEEL: I have not got the letters with me. But,
3 basically, as I recall, the evidence that there is
4 available to the court at this stage is the reference in
5 the transcripts from day 77 about: "At that time -- and
6 I am speaking from memory -- I think Braslo was buying meat
7 from Anglo."
8
9 MR. JUSTICE BELL: That is Mr. Walker, is it?
10
11 MS. STEEL: That is Mr. Walker.
12
13 MR. JUSTICE BELL: I have got that. Give me the page.
14
15 MS. STEEL: It is on page 79, line 1. I have not got the
16 letters with me, as I say, but, as I recall, one of them
17 implies something about extending the business, but it is
18 like ambiguously worded. But maybe if you could check the
19 letters again?
20
21 MR. JUSTICE BELL: I mean, I am asking these questions because
22 I was reading them only yesterday morning.
23
24 MS. STEEL: Right. Unfortunately, I think they were documents
25 that were served late. They are not in the bundles we have
26 in court.
27
28 MR. JUSTICE BELL: I have very much in mind the bit of evidence
29 you have referred to from Mr. Walker, and I have in mind
30 the letter; and they, I have to say, do not seem to me at
31 the moment to amount to any evidence worth the name that
32 Braslo did actually take meat from them.
33
34 It is 25 in divider 4, behind Mr. Walker's statement; and
35 he is writing to Mr. Morganti, and he says he is safely
36 back in England: "....and thank you. I sincerely hope that
37 your business with Anglo develops and you obtain the
38 extended credit which you want and which will help
39 McDonald's price."
40
41 MS. STEEL: I would say -----
42
43 MR. JUSTICE BELL: That is back in '83.
44
45 MS. STEEL: "I sincerely hope that your business with Anglo
46 develops" could be taken as an implication that there was
47 already something there which they were developing.
48
49 MR. JUSTICE BELL: Yes. I will bear it in mind, and I will bear
50 in mind Mr. Morganti's evidence as to just where Sadia, and
51 then Braslo, got their beef from. What I am doing, I am
52 not chasing you on it; I just want to make sure there is
53 nothing else in the evidence which I have overlooked.
54
55 MS. STEEL: I cannot remember anything offhand.
56
57 MR. JUSTICE BELL: No.
58
59 MS. STEEL: If I could just say that during the argument on the
60 day I was not here, Mr. Rampton did say that if we made an
38
1 application to amend, he did not think that he would be
2 able to resist the application. So, I think that if you
3 feel that it is not an issue as presently stands, then
4 perhaps the best course is for us to draft an amendment and
5 to plead that particular issue; and then we would be
6 entitled from that to rely on any information which might
7 be available in terms of either interrogatories or
8 discovery relating to that, because they are the methods by
9 which -- well, they are included in the methods by which
10 you can prove your case.
11
12 MR. JUSTICE BELL: If I grant the discovery.
13
14 MS. STEEL: Yes, obviously.
15
16 MR. JUSTICE BELL: Yes.
17
18 MS. STEEL: OK. I was interrupting Mr. Morris at that point,
19 but I will carry on with the points that I wanted to make.
20
21 Can I just say, in respect of power, if by chance you felt
22 that the documents were not in their power because they
23 were in the possession of the suppliers, as a particular
24 example, I do remember Mr. Cesca saying, or it being in a
25 letter, that when they wanted to check out the location of
26 ranches, they would be given copies of the list so that
27 they could go and visit them.
28
29 Now, presumably, as soon as they get a copy of the list --
30 and, according to their evidence, they verify the location
31 on a frequent basis -- as soon as they get a copy of the
32 list, it is then in their possession and they have a duty
33 to disclose it.
34
35 Dave also reminds me that in Morganti's last statement, he
36 actually says he gave a list to Ray Cesca of all the
37 ranches, anyway. I do not know if you remember that.
38 I have not got the statement with me.
39
40 I mean, the point about the next time they are visiting
41 ranches, I dare say they can try and get round that by then
42 saying they are not going to visit ranches any more. But,
43 I do not know. I mean, it just strikes me that they do
44 regularly come into their possession and, therefore, they
45 should have actually been disclosed by now, because they
46 must have been in their possession within the last five
47 years, since the writs were first served on us, or at least
48 since the rainforest pleadings came into being, which was
49 several years ago.
50
51 I have a note on number 1: the lists of ranches or maps
52 charting the position of ranches supplying McDonald's
53 cattle in Costa Rica. I do not know whether that included
54 -- there was something about being compilations of various
55 years, and I do not know whether that was included under
56 that general heading.
57
58 MR. JUSTICE BELL: It was, because Mr. Cesca gave evidence of
59 lists of ranches, and they were annual -- I forget the term
60 he used now -- but there was a list by year, as
39
1 I understood it.
2
3 MS. STEEL: Right, OK.
4
5 MR. JUSTICE BELL: Multi-year list; that was the phrase.
6
7 MS. STEEL: Right. There is the list that Mr. Cesca referred
8 to on several occasions -- sorry, the map of the kind of
9 out of bound regions in Costa Rica. Is that on the list
10 point -- because he actually said that was in his
11 possession. In fact, he thought he had it with him, but he
12 -- but Mr. Morris says he has already covered that,
13 anyway.
14
15 MR. JUSTICE BELL: So you want to add that to the documents to
16 be discovered?
17
18 MS. STEEL: Yes.
19
20 MR. MORRIS: I did say that in my application, I believe. Well,
21 I am convinced I did.
22
23 MS. STEEL: The next thing I wanted to go on to was the matter
24 about the yellow flashes and what Mr. Cesca had previously
25 said; you wanted to be referred to that -- because of the
26 changing of his evidence when Mr. Rampton got up and
27 intervened.
28
29 MR. JUSTICE BELL: Well, he did say something different; but
30 before Mr. Rampton intervened, my recollection is, having
31 re-read the transcript, he volunteered that he thought he
32 might have given the wrong impression.
33
34 MS. STEEL: That is not my recollection. My recollection is
35 that Mr. Rampton got up and said, "He did not say that",
36 and then the witness then changed his mind about what he
37 had previously been saying. Actually, he made corrections
38 earlier on in the day when he came back, but not about that
39 particular point. That was something that he just
40 completely left standing, or did not indicate that it was
41 something he wanted to change at all.
42
43 There is one reference on day 220, which is
44 Friday, 23rd February of this year.
45
46 MR. JUSTICE BELL: Give me the page reference.
47
48 MS. STEEL: On page 16, line 29 -- there is line 17, which is
49 about Londrina, and then on line 29 which says: "....that
50 they would collect beef from the surrounding area up to 200
51 or 300 kilometres." "That would be collected there to be
52 passed on to one of the meat packing plants -- take the
53 Bauru plant?" The answer was: "Yes." Then you
54 asked: "Just so that I make sure I am not misunderstanding,
55 if we look, for instance, at Pedro Gomes which is the
56 yellow flash furthest to the north from Campo Grande?" "OK
57 Pedro Gomes, yes." You carry on: "Cattle are collected,
58 let us say, from approximately a 200 kilometre radius --
59 I only put it that way for the purposes of the question --
60 and then what happens when they get to Pedro Gomes?"
40
1 Answer: "The farmers in the area, whoever is going to sell
2 them the cattle, would deliver them to a spot or a
3 location." "Yes. Pedro Gomes in this case?" "In this case;
4 and then they would be loaded on the back of a truck...
5 the truck would then stop at different locations on its way
6 from Pedro Gomes all the way to Campo Grande."
7
8 Then on page 17 at line 51, Mr. Morris says: "Let me just
9 see if we have got the chain clear. The yellow highlighted
10 areas are the collection points for a hinterland of
11 something between 200 and 300 kilometres; and then the live
12 cattle are taken, in your experience, to the four named
13 plants on this map, which slaughter and debone?" "Yes."
14
15 MR. JUSTICE BELL: I do think that is equivocal; and what
16 concerned me -- you see, the trouble is, the plants are
17 yellow flashes as well, and that is why I asked the
18 question about -----
19
20 MS. STEEL: Pedro Gomes.
21
22 MR. JUSTICE BELL: Yes. What I have to decide -- and it is part
23 of a judge's function -- is if there has been a sinister
24 change or whether, even though it has been spelt out to a
25 witness, he has misunderstood and is getting the wrong end
26 of the stick or not. I mean, that is part of one's job,
27 really.
28
29 MS. STEEL: If I could just say, the best way of sorting that
30 out is that Mr. Cesca said that he prepared the map, the
31 yellow flashes on the map, from a list which he had been
32 given.
33
34 MR. JUSTICE BELL: Mr. Cesca prepared it. The whole point, if
35 it can be made against you here, is that Mr. Morganti did
36 that, and he said the areas are the places marked in yellow
37 on the map. So, whatever Mr. Cesca said, on the face of
38 Mr. Morganti's evidence, they come from reasonably nearby,
39 I would have thought, all the towns with yellow flashes;
40 and that is the point which would no doubt be made against
41 you on that.
42
43 If I can ask a rhetorical question: what is the point of
44 having all these satellite yellow flashes to the plants --
45 with Goiana on one side, because there is a separate point
46 in relation to that -- if there are to be yet other yellow
47 flashes as satellites to the satellite yellow flashes?
48
49 MR. MORRIS: Because when I -- in my view, Mr. Morganti's
50 statement was not 100 per cent clear on this; and I know
51 you did not agree at that time, but maybe, with the
52 hindsight of the evidence since, it is clear at the minimum
53 that there is ambiguity and confusion and grey areas, if
54 not yellow areas; and that the words using in Morganti's
55 statement are: "They obtain their cattle from these areas."
56 That is my recollection of Mr. Morganti's statement, which
57 did not specify at any time in his statement where the
58 cattle were actually reared. He talked about their
59 suppliers obtaining them; and if they are collection
60 points, then it is reasonable to suppose that they may be
41
1 taking cattle from, as Mr. Cesca indicated, a wide area.
2
3 So, obviously, the solution would be to have the list of
4 ranches. In any case, Mr. Cesca said that the yellow
5 flashes were only a third, so far as he could see, of the
6 collection points; and I took that from my notes.
7 I already argued it, so I will not argue that again.
8
9 I just think that it is very simple matter, really. If the
10 Plaintiffs have in their possession, power or control, or
11 ever did have, as is clear they have had in the past, maps
12 of ranches, and they are clearly relying upon that kind of
13 information, then it should be available to us as well as
14 to them. That is all, really.
15
16 MR. JUSTICE BELL: Yes.
17
18 MS. STEEL: Can I just say, so that people can check if they
19 want to, the point where Mr. Cesca changed his mind was on
20 day 221, which was 26th February. On page 32, Mr. Morris
21 was actually asking about Costa Rica, and then he
22 said: "Some of the live cattle we have seen in Brazil were
23 transported a couple of hundred kilometres to a collection
24 point which was in itself", and then he is interrupted by
25 Mr. Rampton, who says: "I do not believe that is the
26 evidence", and then you say, "I think it was, actually.
27 There may have been a misunderstanding about it."
28 Mr. Rampton says: "I think there is a misunderstanding."
29 It carries on; and, anyway, it is only after all of that
30 that -- well, the point is that it was not something that
31 Mr. Cesca brought up of his own accord; it was after
32 Mr. Rampton's intervention; and he had not corrected it,
33 despite the fact that he had corrected other things that he
34 had said in his evidence on previous days.
35
36 Mr. Rampton, during the argument on Friday, 8th March, said
37 that he was willing to ask Mr. Morganti to tell us where
38 the other areas are, the collection points for Goias -- and
39 I think it was some other areas as well. But I want to
40 make the point that it is a lot easier if they just provide
41 the list than asking Mr. Morganti to do a new statement;
42 and I do not really see why they are so resistant to
43 providing the list if they are willing to give the
44 information in a statement anyway. Presumably -- well, so
45 far as I can see, the only reason why it might be that they
46 would rather give it in a statement than a list is because
47 they can leave parts out and make it ambiguous. Otherwise,
48 you know, why go to the trouble of getting a statement
49 prepared, when you a have a list to hand and ready?
50
51 I do not think that right now -- although I just want to
52 check something; perhaps I can do that whilst Mr. Morris is
53 making some points -- I do not think I have got anything
54 else.
55
56 MR. MORRIS: Just to finish off the other point, which is the
57 World Wildlife Fund dispute. I think the Plaintiffs were
58 going to check that file which they had in their
59 Corporation's headquarters in Oakbrook, relating to the
60 World Wildlife Fund dispute.
42
1
2 MR. JUSTICE BELL: I think what Mr. Rampton said that was a
3 check would be made that the documents found in London were
4 the same as the ones, but there were not additional ones in
5 an Oakbrook file to the ones which had been found at
6 Barlow's.
7
8 MR. MORRIS: Yes. So we are waiting for that. The Jungle
9 Burger matter seems to have been overtaken by events.
10
11 MR. JUSTICE BELL: Yes.
12
13 MR. MORRIS: The Germany soya documents -- Mr. Rampton, we
14 believe, missed the point, which is that we were not
15 expecting the documents in the possession of Dr. Schumm or
16 Sudfleisch; we were expecting the documents in the hands of
17 McDonald's Germany, relating to this issue. We have not
18 had, as yet, one document from McDonald's Germany relating
19 to this issue that has been pleaded for a substantial
20 number of years in the case; and it being a matter of
21 controversy and investigation, clearly, two expert
22 reports.
23
24 So, all I am saying on that is that Mr. Rampton gave the
25 impression: how would Dr. Schumm, let alone Sudfleisch,
26 let alone LO Fleischwarren -- and he painted this great
27 long chain where no documents could possibly be in the
28 possession, power or control of McDonald's; and we are
29 looking for the documents that are in the possession, power
30 and control of McDonald's in Germany on this issue, and we
31 have already outlined the kind of documents that we would
32 be looking for. It is not the expert documents, but the
33 factual documents about supply sources and their feed.
34
35 I think the US beef labelling law -- well, we have
36 statements and some legal matters, legal documents, on that
37 already.
38
39 It leaves the Heathrow documents and the US video. Do you
40 want me to deal with them while we are on the subject?
41
42 MR. JUSTICE BELL: Well, has Ms. Steel finished what she wants
43 to say about the environment discovery?
44
45 MS. STEEL: I have, basically. It is just that I have a fear
46 about something which I am trying to check.
47
48 MR. JUSTICE BELL: Sit down and think about that before we go on
49 to anything else. What I want to do, even though it
50 involves -- I want to ask Mr. Rampton about two matters.
51 So I will do that now, so that you end up having the last
52 word.
53
54 The first thing is this: I cannot remember, and I do not
55 want to look all through my notes, whether I invited you to
56 address me on the out of bound regions map of Costa Rica
57 which it appeared Mr. Cesca thought he had but then, when
58 the map turned up -- it was Costa Rica and not Guatemala,
59 was it?
60
43
1 MR. RAMPTON: I think it was, because the map that turned up was
2 a Costa Rican map which was not the map; and, therefore,
3 I think was Costa Rica, and I think he did say that he had
4 it. He plainly did not have it here. Whether he has it in
5 Oakbrook, I know not. I did not deal with it specifically,
6 because I dealt with all those Costa Rican documents under
7 the single -- and I would say, actually, leaving aside
8 legal questions of power -- under the single umbrella of,
9 to use your Lordship's words: is there really any more in
10 this case any kind of a live issue about where the beef
11 comes from and came from in Costa Rica, and whether that
12 was ever rainforest? Really, I -----
13
14 MR. JUSTICE BELL: As long as you are content you have said what
15 you want to on that, I did not want you -----
16
17 MR. RAMPTON: That is how I deal with that. I would say this:
18 a lot of the documents which the Defendants have asked for,
19 we probably do not have; but even if we had them, I do
20 object to being asked for what I call pointless or
21 irresponsible discovery. I am not here to provide the
22 Defendants -- I have said it before, but I will say it once
23 more -- with an opportunity to see whether they can make a
24 case which they presently do not have. That is the
25 attitude I take on Mr. Cesca's map of the forbidden regions
26 of Costa Rica, if it should exist.
27
28 MR. JUSTICE BELL: The other matter is in relation to power --
29 because I remember your argument based on the
30 specifications.
31
32 MR. RAMPTON: Yes.
33
34 MR. JUSTICE BELL: There are two points on that. The first is
35 -- I am right, am I not -- that we do not actually have
36 any documentation which shows exactly what the contractual
37 relationship is so far as any specification documents are
38 concerned between what I will just call McDonald's Brazil
39 and the First Plaintiff, or Costa Rica Fast Food SA, which
40 is the Costa Rican company, or Industrie de Hambugesas SA,
41 which is the Guatemalan company?
42
43 MR. RAMPTON: You are right about that; that is correct -- not
44 so far as I know, anyway. I have never seen them.
45
46 MR. JUSTICE BELL: All these questions are dealt with on balance
47 of probabilities, as to whether a right to claim, a legal
48 right to claim, exists or not, just the same as anything
49 else; it is just what is more likely than not.
50
51 MR. RAMPTON: If it were a matter of construction, that is -----
52
53 MR. JUSTICE BELL: It is a matter of law. But if I do not
54 actually have a document to construe, am I not thrown back
55 on what is the most likely position? I accept that I have
56 to be a bit more rigid if I have got the contractual
57 document.
58
59 MR. RAMPTON: If you have a contractual document, you have to be
60 completely rigid, I think. But if you have not, then the
44
1 best that the court can do, I would submit, is to look at
2 what contractual materials it has got and build an
3 inference of probability -- yes, I agree with that -- on
4 the face of those documents.
5
6 MR. JUSTICE BELL: Let me get out my children's bricks and build
7 this house. It is a requirement of the First Plaintiff
8 that no beef comes from recently deforested rainforest
9 land.
10
11 MR. RAMPTON: It is now, yes.
12
13 MR. JUSTICE BELL: Or has been since 1989; and Mr. Cesca would
14 say earlier, and there may be a conflict about that. Can
15 I not infer that, by some route, it is a term of contract
16 between the First Plaintiff and the supplying companies in
17 the three countries that they provide some confirmation of
18 that, in the same way as the First Plaintiff has felt able
19 to demand of its US supplying companies that they do not
20 take any imported beef or anything of that kind; and the
21 second stage, if they are entitled to demand that, are they
22 not entitled to demand it not just so that they feel cosy
23 in their armchairs in the evening, but so they can spell it
24 out to the rest of the world that it does not come from
25 rainforest or ex-rainforest land?
26
27 MR. RAMPTON: Those are questions your Lordship might ask.
28
29 MR. JUSTICE BELL: What is the answer?
30
31 MR. RAMPTON: I would have to answer them seriatim, if I may,
32 because in fact -- I am just writing it down, because in
33 fact I believe -----
34
35 MR. JUSTICE BELL: Suppose you are right, that if one looks at
36 the specification there are things there where the supplier
37 would be perfectly entitled to say: "Yes, well, of course
38 we are happy that you should see documents to reassure
39 yourself about the quality of our product, but that
40 certainly does not entitle you to documents so that you can
41 demonstrate to the rest of the world the quality of the
42 product." When we come into the question of rainforest,
43 both the supplier and the First Plaintiff would perceive
44 that it is not just a question of not taking rainforest
45 cattle so that you sleep well at night; it is a question of
46 not taking it so that public opinion is not agitated
47 against you.
48
49 MR. RAMPTON: I am not sure that I would agree with that
50 proposition. It depends on the view you take; and it is a
51 matter for your Lordship, obviously. I am not at all sure
52 that I agree with that. I do not believe that it would be
53 a term of a contract, if one can put it explicitly, between
54 the corporation and the joint venture partner in Costa Rica
55 that the Costa Rican joint partner must, under all
56 circumstances, disgorge documents so that McDonald's can
57 use them to fight off black propaganda. I do not believe
58 that at all. McDonald's, for their own purposes, may, so
59 that they can sleep well at night or be comfortable in
60 their armchairs, be entitled to see such documents, if they
45
1 exist.
2
3 My Lord, there are three questions: are they entitled to
4 require performance with the specification -- and it is the
5 international specification which no doubt applies between
6 the Corporation and the -- well, I say that. I am not even
7 sure that that is right, actually. The international
8 specification would apply, I suspect, between McDonald's
9 Costa Rica and their suppliers of patties, imposed no doubt
10 from Oakbrook. I am not at all sure that I am willing to
11 accept that a contract, such as it may be, between the
12 corporation and the joint venture partner in the particular
13 locality would contain such a term, because it is not a
14 contract for the supply of beef or beef patties; and it is
15 to that supply that the specification, the explicit
16 specification, against the use of rainforest or
17 ex-rainforest beef is applied. So, as with Mr. Walker, the
18 document concerned, the contractual document containing
19 that specification, would bind the supplier of the beef to
20 McDonald's in the particular country concerned. That is
21 the first question.
22
23 Whether as a matter of agreement between the Corporation
24 and the joint venture partner, the Corporation is entitled
25 to insist that the joint venture partner carries out its
26 wishes in this matter, the answer to that is probably
27 "yes". I do not know, but I suspect on balance of
28 probabilities the answer is probably, yes, the Corporation
29 probably would make it a condition of the contract between
30 itself and the joint venture partner that its wishes in
31 this matter are observed. Probably, also -----
32
33 MR. MORRIS: Probably would make it?
34
35 MR. RAMPTON: Probably would be, yes, probably -- although I do
36 not know. Probably, also, the Corporation would be able to
37 extract written or oral confirmation in this form: "Yes,
38 we comply with that specification." Whether -- and this is
39 the big question -- the Corporation would be entitled to go
40 a step further and say, "We demand to see the written
41 confirmations which you have from your meat suppliers" is a
42 much more difficult question, if I may respectfully say
43 so. A fortiori, if the Corporation said: "We want to see
44 those documents which you can get from your meat supplier,
45 your cattle slaughterer, and which we are entitled to see
46 in the ordinary course of your business with them, we want
47 them which we do not have because we want to conduct a
48 propaganda exercise or a publicity exercise to the world at
49 large", I would very much doubt. By parity of reasoning,
50 I very much doubt whether the Corporation would have power
51 to say -----
52
53 MR. JUSTICE BELL: Express it another way. Forget words like
54 "propaganda". "To protect ourselves from allegations that
55 our patties do not conform to this health provision, or to
56 protect ourselves from allegations that meat comes from
57 cattle reared on ex-rainforest land." All this is without
58 prejudice to whether I decide that there is absolutely any
59 use at all in seeing these documents in the light of the
60 amount of evidence we have had already.
46
1
2 MR. RAMPTON: This is one of my problems, I frankly admit. If
3 I felt that such documents had a purpose in the case beyond
4 satisfying the Defendants' lust for sight of McDonald's
5 documents and seeing whether they can get a case which they
6 do not have, then I very much prefer not to argue what may
7 be sterile points of law. But I do not believe that I can
8 properly answer your Lordship's question "yes", if the
9 question is: would not they be entitled to have them for
10 the purpose of defending themselves against false
11 allegations made publicly? I do not believe, as a matter
12 of contract, that probably would be so. I am certainly not
13 willing to concede it, in any event, because it concedes an
14 issue of principle which in this case is of some
15 considerable importance. Your Lordship may decide against
16 me. So be it. It does not infringe in any way at all on
17 my primary submission, which is that none of these
18 documents has any useful purpose to play in this case, or
19 any proper purpose, I should say, to play in this case, in
20 the light of the state -- or I should say non-state -- of
21 the Defendants' evidence on this document.
22
23 I do not think there is anything more I can say about
24 that. One is, I fear, to an extent speculating. But
25 your Lordship is driven, perhaps, to do that, because I
26 believe in the first instance, on the question whether the
27 documents should be listed as opposed to inspected or
28 disclosed for inspection, the burden is on me to say, well,
29 I do not have the power to call for these documents.
30
31 MR. JUSTICE BELL: Yes.
32
33 MR. RAMPTON: I think that is good law -- should it be thought
34 likely that such documents do exist, as in some cases -----
35
36 MR. JUSTICE BELL: I am interested in that. I do not want to
37 prolong the argument beyond its worth, but is that right --
38 because you are only under an obligation under Order 24 to
39 disclose documents which are in your power which relate to
40 any matter in issue in the proceedings.
41
42 MR. RAMPTON: I wish I had a White Book.
43
44 MR. JUSTICE BELL: I think we can probably forget Rule 1, which
45 is mutual discovery, because it does not add to Rule 2
46 anyway, which puts an obligation upon a party to make and
47 serve on any other party a list of the documents which are
48 or have been in his possession, custody or power, relating
49 to any matter in question between them in the action.
50 I would have thought that it was only an obligation to list
51 documents which positively are in your power. We have gone
52 on to an informal approach, really, under Rule 7 now.
53
54 MR. RAMPTON: Yes. I know I am arguing against myself, but that
55 is nothing new in this case.
56
57 MR. JUSTICE BELL: No. You are in a peculiar position because,
58 however well the Defendants may argue the matter, you have
59 to try and help me as well.
60
47
1 MR. RAMPTON: I know I have; and therefore I do so. I just had
2 a feeling that I had seen a recent authority in which the
3 court had said that -- of course my obligation is to
4 disclose documents which are in my power, but if there
5 should arise a question whether they are in my power or
6 not, then the further question arises: on whom lies the
7 burden to satisfy the court that they are or not? I had a
8 feeling I had seen a recent authority about that, but
9 I could well be mistaken; it may have been something else
10 completely. I think I probably am wrong. I am looking at
11 page 458.
12
13 MR. JUSTICE BELL: Yes. If it is Rule 7, the burden is on the
14 party seeking discovery to show it is necessary for the
15 fair disposal of the application; and I merely rhetorically
16 ask: is the burden not also on that party to show that they
17 are in the power of the -----
18
19 MR. RAMPTON: My Lord, if one looks at Barclay Administration v.
20 McLelland -- I think I had that in mind, actually, and
21 I put it the wrong way round -----
22
23 MR. JUSTICE BELL: Where is that?
24
25 MR. RAMPTON: It is about 10 lines down from the top of
26 page 458. There are digested there a number of principles
27 stated, apparently, by the court in that case; and it is
28 really 1C that -- perhaps it is 1C that is the material
29 principle; and, if that is right, then your Lordship is
30 right and I am wrong. The burden is on the party
31 applying. That is quite clear.
32
33 MR. JUSTICE BELL: There must be sufficient evidence that the
34 document is in the power of the other party.
35
36 MR. RAMPTON: That is right, the other party. So, implicit in
37 that and on the general tenor of the rule and the context
38 in the procedure in which the rule appears or has its
39 place, then the burden must be on the party applying to
40 show sufficient evidence before the court will make an
41 order.
42
43 MR. JUSTICE BELL: That is what I would be -----
44
45 MR. RAMPTON: I apologise for that red herring. I must have
46 been thinking of something else.
47
48 MR. MORRIS: I have not got a copy of the White Book. I think
49 this is a completely illogical provision. Does it say the
50 obligation is on the power of the party applying?
51
52 MR. JUSTICE BELL: Yes.
53
54 MR. RAMPTON: In fact, yes.
55
56 MR. MORRIS: Mr. Rampton said yes.
57
58 MR. JUSTICE BELL: It says, before I make an order when we got
59 past the stage where you make lists of documents and one
60 party says, "I have reason to believe that the other party
48
1 has particular documents in their possession, control or
2 power which relate to matters in issue and, therefore,
3 I want the court to order that they be produced", that they
4 be listed; and if we get listing because you have evidence
5 of the existence of the documents, what you want is -- you
6 do not even want its inspection of the original; you short
7 cut that as well; you want production of copies of them.
8 Then, first of all, there is no jurisdiction for me to
9 order that you have copies unless (a) there is sufficient
10 evidence that the documents exist which the other party has
11 not disclosed. You have got over that, subject to whether
12 they are relevant at all. "The document or documents
13 relate to matters in issue in the action". I will put that
14 on one side for the moment, but then (c), "There is
15 sufficient evidence that the document is in the possession,
16 custody or power of the other party. When it is
17 established that these three prerequisites for jurisdiction
18 do exist, the court has a discretion whether or not to
19 order disclosure".
20
21 MR. MORRIS: We would argue that, based on that, there is
22 sufficient evidence the documents are in the power of the
23 Plaintiffs on the grounds that, as has been stated, the
24 carrying out of the specifications, which McDonald's claims
25 are compulsory on their supply chain, would not be
26 enforceable without this possession, power or control over
27 documentation and Mr. Rampton has said as much, I think
28 that the relationship between the supplier and the
29 subsidiary of McDonald's is not likely to be any different
30 in terms of the documentation than the power between the
31 corporation and its subsidiary or joint venture partner, or
32 whatever.
33
34 Therefore, we believe that based upon the other things we
35 have heard there is sufficient evidence that the documents
36 are in the power of the parties in this case and unless the
37 parties -- we believe the documents should, therefore, be
38 ordered. If the parties then, if the Plaintiffs then come
39 up with a contract between the corporation and McDonald's
40 Costa Rica, whatever, you know, exempting their subsidiary
41 or joint venture partner, or whatever, from it, so be it.
42 But I think it has already been established that they have
43 the -- there is sufficient evidence on balance of
44 probabilities -- in fact, I would say it is inconceivable
45 that McDonald's Corporation does not have that power
46 because of their clear -- what is the word -- stated
47 position regards their specifications and their uniformity
48 of their specifications worldwide and their demand for that
49 uniformity.
50
51 So, on those grounds, we would ask that the documents be
52 ordered.
53
54 Of course, if you are minded not to order those documents
55 because of not being convinced that there is sufficient
56 evidence, then we would certainly apply for the contracts
57 they have between the corporation and those three
58 countries, if not four if we include Germany, which are
59 documents clearly in the possession of the corporation.
60 But I think there is sufficient evidence that they do have
49
1 power, possession and control over those documents.
2
3 MR. RAMPTON: My Lord, can I clear up the confusion which
4 I created. I have not taken leave of my senses. There is
5 something that I remembered. It comes from the case of
6 Dolling-Baker v. Merrett [1990] 1 W.L.R. 1205, which was
7 in the original bundle of authorities.
8
9 MR. JUSTICE BELL: Yes, it is in my room.
10
11 MR. RAMPTON: Yes, it is, my Lord. What I had in mind was --
12 and I apologise for the confusion and it is completely
13 different -- where the court has, as it were, accepted that
14 the documents are prima facie disclosable in the sense that
15 they are relevant and that they are within the possession,
16 custody and power of the parties, then, as your Lordship
17 has just observed, under rule 8 of Order 24 it has a
18 discretion whether to order the discovery for the fair
19 disposal of the action or for the saving of costs. Under
20 rule 8, where the wording is, "The court, if satisfied the
21 discovery is not necessary", under that rule the burden is
22 on the party objecting giving the inspection.
23
24 MR. JUSTICE BELL: Yes, I understand that.
25
26 MR. RAMPTON: That is quite different, whereas under rule 13 it
27 has the same wording as is set out in that part of the
28 White Book we just looked at. "The court will not order
29 discovery unless it is of the opinion that the order is
30 necessary", that is 13(1), and there the burden is on the
31 party applying.
32
33 MR. JUSTICE BELL: Yes.
34
35 MR. RAMPTON: So, that is what I had in mind and it is -----
36
37 MR. JUSTICE BELL: But that does not change the impact of the
38 notes on page 458.
39
40 MR. RAMPTON: No, it does not. That is why I am apologising.
41 I confused the two issues. The burden only shifts to me at
42 a point where the Defendants have satisfied your Lordship
43 that the documents exist, that they are relevant and that
44 they are within my possession, custody or power. Then I
45 have to satisfy your Lordship that their production is not
46 necessary.
47
48 MR. JUSTICE BELL: Is there anything more you want to say before
49 we go on to 9 and 10?
50
51 MS. STEEL: Yes. The bit that I was looking for about the map,
52 which, looking at it now, it is ambiguous, is on day 219 -
53 the yellow flashes, I am talking about, and the list from
54 which they were prepared. Day 219 which is 22nd February.
55 On page 66 I asked Mr. Cesca: "You mentioned about
56 Mr. Morganti provided you with an outline of where all the
57 ranches were, or something, from which this map was
58 prepared, or the yellow flashes were marked?" Mr. Cesca
59 said, "Yes." Then I said, "Right. What did that consist
60 of? Was that a single page, or was that", and he said,
50
1 "Yes, it is, well, just enough pages to identify the
2 areas." Then he says, "Are you talking about the map
3 [with] the ... hash marks on it, because that is only
4 about, you know, that is less than a third of what the list
5 would look like". But it is clear from that that Mr. Cesca
6 has been given a list from Mr. Morganti. So that is
7 something that is obviously in the possession of the First
8 Plaintiff. Basically, that was that point.
9
10 If I just reiterate briefly that there are issues still in
11 the case regarding this, concerning the fact that our
12 witnesses have stated that some of the regions where
13 McDonald's are getting their beef from in Costa Rica and
14 Brazil, and we have seen from the map in Guatemala that
15 some of the regions that they get their beef from are areas
16 either where there was formerly rainforest or where----
17
18 MR. JUSTICE BELL: As I tried to say before, nothing on this
19 ruling in any way inhibits you calling evidence, subject to
20 any objection taken on the base of lack of notice, that in
21 the areas where McDonald's witnesses have said cattle come
22 from there was rainforest until recently or there had been
23 Indians and farmers being displaced.
24
25 MS. STEEL: OK. I wanted to make it.
26
27 MR. JUSTICE BELL: That is another point. As you know, what
28 I am searching for at the moment is whether it is worth
29 having one more jot of evidence if, when I look at what I
30 have got already, I have no reason to doubt the accuracy of
31 the evidence I have so far heard about the areas. Anyway,
32 is there anything more you want to say about that?
33
34 MS. STEEL: Yes. Just on that, I think there is reason to
35 doubt the accuracy because there has been conflicting
36 evidence, even between the Plaintiffs' own witnesses.
37
38 MR. JUSTICE BELL: I have got that point.
39
40 MS. STEEL: Just on the issue of power. Now, several of the
41 documents that were referred to by Mr. Cesca, he did say
42 that he could easily get them, and if you want an example
43 on the same day on day 219, page 61 -----
44
45 MR. JUSTICE BELL: You need not remind me of that. He made that
46 quite clear.
47
48 MS. STEEL: Right. Just in relation to suppliers, as far as
49 I recall, on every occasion when it has come up previously
50 McDonald's have basically said that they do not have a
51 contract; it is all done on a word of mouth basis and
52 trust.
53
54 Now, it is clear from what Mr. Cesca said that, basically,
55 if they ask for something they get it. They do not have to
56 give a reason why they want it, and I think it is extremely
57 unlikely that if there was a contract it would specifically
58 say, "... and you cannot have it for legal purposes or for
59 the purposes of clearing your name", or whatever. Whether
60 it is a verbal contract or a written contract the
51
1 understanding is basically -- the working understanding and
2 the working practice is basically that if McDonald's ask
3 for a document they will be given it. Obviously, it has to
4 be related to their company; I am not talking about other
5 companies that those suppliers supply to.
6
7 So, I would say that they have an obligation to disclose
8 the documents, that they are within their power because
9 they are quite capable of asking for them and they will be
10 given to them, and if it turns out that the suppliers
11 suddenly have changed their policy or practice that has
12 been going on, as far as we can understand it, from what
13 Mr. Cesca says, it has been going on for years, if they
14 suddenly turn around and say, "No, we are not going to give
15 them to you", well, then, the Plaintiffs can come back and
16 say that is the position and we will have to deal with it
17 then. But, on the face of it, it is clear they are capable
18 of getting hold of those documents without any problems
19 whatsoever and without having to give any reasons
20 whatsoever. So they should be ordered to disclose them.
21
22 MR. JUSTICE BELL: Yes. What did you want to say in addition in
23 relation to the Heathrow documents or the Mr. Rensi video?
24
25 MR. RAMPTON: My Lord, can I hand that up. I have stuck it
26 together as best I can. Your Lordship's Post-its are still
27 on it. I hope they are in the right place. (Handed).
28
29 MR. JUSTICE BELL: Thank you.
30
31 MR. MORRIS: The Heathrow documents -----
32
33 MS. STEEL: Can I say incidentally about that map that was
34 handed up, I did verify those particular things with
35 Mr. Cesca and I could look up the references if you do want
36 them.
37
38 MR. JUSTICE BELL: Yes.
39
40 MR. MORRIS: The Heathrow documents. It is just, basically, we
41 are waiting for a response from the Plaintiffs about
42 whether they still have a national computerised information
43 system for employment matters and can access relevant
44 documents from the Bath store, and we think it might be
45 helpful if they were given a deadline to do that because it
46 could probably be done at the press of a button in five
47 minutes. It might encourage them if they had a deadline,
48 say, by Thursday, or something.
49
50 MR. RAMPTON: My Lord, Mr. Morris' -- I have said it before and
51 I will say it again -- his ignorance of computing science
52 is about as great as mine. It is not Bath anyway; it is
53 Heathrow.
54
55 MR. MORRIS: Sorry, yes; Heathrow.
56
57 MR. RAMPTON: In order to get that information out of the
58 computer, if it is still there, one would have to write a
59 whole new programme. What that involves I do not yet know
60 and I will certainly tell your Lordship when I do. It is
52
1 not a question of pressing a button. There are things
2 spewing out, a Speak Your Weight printout; it is much worse
3 than that. My Lord, I believe we had this problem before
4 in relation to some information in America, I believe in
5 relation to accident statistics but I am not sure. It
6 might have been rates of pay.
7
8 MS. STEEL: Can I clarify what the situation is because, on my
9 reading of the transcript where this was discussed
10 previously, Mr. Rampton did not actually say that was the
11 case. He said that might be the case and that they were
12 going to investigate. So is he saying that is the result
13 of their investigations?
14
15 MR. JUSTICE BELL: No, I think what he is saying is that it is
16 his understanding that it may be so. Anyway, the answer is
17 whether it is "may be" writing a programme or "have to"
18 write a programme, they would want time to find out how
19 much would be involved in it.
20
21 MR. MORRIS: Right, yes. I am afraid I do not accept the
22 completely ludicrous claim that the McDonald's Corporation
23 has to write a new programme to check on legal documents
24 that they are required to keep for seven years.
25
26 MR. JUSTICE BELL: Wait until you hear what is actually said
27 about that and then make your point on that.
28
29 MR. MORRIS: Maybe if they can be given a deadline on either to
30 produce the documents or to have a sworn affidavit as to
31 the position of why they cannot. Mr. Rampton says that is
32 wasting time, but we have applied for these documents for
33 about two months, and that is wasting time. The US video -
34 I do not know if you had the original. Have you had a copy
35 of the article?
36
37 MR. JUSTICE BELL: I will not dig it out now, but I can remember
38 it. You gave me a photocopy of it.
39
40 MR. MORRIS: Yes. What we have had from the Plaintiffs is a
41 statement about the video. Well, for a start, we have not
42 had the video, which is a relevant document, and we have
43 helpfully got a transcript of a minuscule part of the
44 video, but we have applied for the video and we think the
45 whole video should be disclosed.
46
47 MR. JUSTICE BELL: Can I deal with this until I have had a
48 chance to look at the document which you are now looking
49 at?
50
51 MR. MORRIS: I am sorry; I thought you would have had it.
52
53 MR. JUSTICE BELL: I do not think I have had it yet.
54
55 MR. RAMPTON: Can I pass one up? My Lord, what we have done is
56 to transcribe that part of the video, the whole of which is
57 about nearly three hours, the whole of which Mr. Atkinson
58 has looked at twice. We have produced a transcript of that
59 part of it which we deem to be relevant. There can no
60 doubt be an argument about whether we are right about that,
53
1 but, my Lord, I do most earnestly resist any suggestion
2 that we should have to produce an edited version of the
3 video tape corresponding with this transcript, simply
4 because it takes ages to do and it costs a lot of money;
5 because that is all we would do. If we are right about
6 relevance they would not get the whole video anyway; they
7 would only get an edited version of it. My Lord, that is
8 the transcript.
9
10 MR. MORRIS: It may be better to deal with it another day.
11
12 MR. JUSTICE BELL: I think you had better add it on to the end
13 of what you are coming back to later in the week and I will
14 have a look at this in the meantime.
15
16 MR. RAMPTON: I would only say that the handwritten names on it
17 are Mr. Atkinson's. It is his writing. My Lord, can I say
18 this about Heathrow and deadlines. On the view I take, and
19 I will tell your Lordship about my prognosis for the
20 evidence when it is convenient -- I do not know when -- the
21 Defendants will not be able to make any use of those
22 Heathrow documents for a very long time to come anyway;
23 they will not have to make use of them. So there is not,
24 perhaps, a lot of point in imposing deadlines just for the
25 sake of it.
26
27 MR. JUSTICE BELL: No. The only point is that then we do
28 remember that the matter has to be dealt with.
29
30 MR. RAMPTON: I know. We have not forgotten. Mrs. Brinley-Codd
31 keeps what I call rolling shopping lists of everything that
32 has to be done, gets written down, and is attended to
33 usually sooner rather than later. Some things, of course,
34 slip past and so on.
35
36 Without going into the question of scheduling now, but
37 since we are not going to be here tomorrow, so that
38 everybody should have time to think about it tonight, may
39 I hand in what I propose not as a set schedule or a fixed
40 schedule, or anything like that, just what I regard as a
41 reasonable -- and when I say "reasonable" I mean in the
42 sense that it is not going to put too much pressure on the
43 Defendants -- and, I am afraid, a rather gloomy prognosis
44 about when I believe the evidence will finish
45 realistically, and perhaps just say a word about it to your
46 Lordship now so that the Defendants can think about what
47 I have said before we meet again on Thursday.
48
49 My Lord, the only diagonal lines that I have drawn
50 represent fixed legal or public holidays. I have not
51 worked into this any specific days for preparation or for
52 rest and recreation, or whatever. There is nothing left
53 this term except Thursday, so far as your Lordship is
54 concerned, possibly a bit of Friday. I have fixed
55 Mr. Donald Munro for Tuesday, 16th in the belief that there
56 could not be any valid reason why he should not come and he
57 is not going to be blocked by any other witness and he
58 comes before the Defendants' rainforest witnesses. He
59 should not be more than two days, but I have given him two
60 days just in case, as I did for Mr. Woolf.
54
1
2 Then one comes to the Defendants' rainforest witnesses. Of
3 course, so far as I am concerned, that is in a sense just
4 supposition. It is a suggestion that that is when they
5 should start. There are, in theory, 13 or 14 of them.
6 I do not believe it is even remotely possible it would take
7 13 or 14 days. As their evidence stands at present,
8 I would not expect them to take more than about five days
9 altogether, if that.
10
11 My Lord, I do not run them through in my mind right through
12 to the end of the week of 29th May. I do not run them
13 through in my head until 3rd May. I had envisaged that all
14 or most of that week would be time off, 29th May onwards -
15 that is assuming the Defendants are able to call their
16 rainforest witnesses at that time, which is the logical
17 place to put them, though obviously not the only place.
18
19 My Lord, then Monday, 6th May is a bank holiday. I have
20 put Mr. Preston in there because I know that he is
21 available for those three days - the 7th, the 9th and the
22 10th; not the 8th because he has a problem being here on
23 the 8th, but he still has his three days and the Defendants
24 have plenty of time before he comes back to reprepare their
25 cross-examination of him.
26
27 The next week is speculative, the one beginning the 13th in
28 this sense, that there is a gap. I want to fill it because
29 I want the case to end, and I have put in employment
30 witnesses with in mind that there is Mr. Brett, there is
31 Mr. Olive, and there is a possibility that we shall ask
32 your Lordship's leave to call one further employment
33 witness ourselves. I will not say any more about that at
34 the moment, save that she deals with the question of
35 overtime which might occupy those three together, maybe
36 two, two and a half, three days; again, leaving the end of
37 that week, maybe over half the week, blank.
38
39 I then devoted the week beginning the 20th, which need not
40 start on the 20th, the Monday, to further nutrition
41 evidence, which will certainly include Professor Crawford
42 and Mr. Fairgrieve, according to your Lordship's
43 indications. That is only two witnesses. Whether there
44 need to be more than that will depend in part, no doubt, on
45 what happens in the Court of Appeal next Tuesday.
46
47 Then from 27th May to the 3rd is what Mr. Morris would no
48 doubt call official holiday. It is about nine/ten days,
49 and then I would propose to start on 4th June.
50
51 MR. JUSTICE BELL: That is legal vacation.
52
53 MR. RAMPTON: It is legal vacation, exactly, and the court does
54 not sit on Monday, 3rd. Term starts again on Tuesday, 4th,
55 and I would propose to start calling my publication
56 witnesses then, of whom there are six. I have allowed them
57 a day each. I am quite content, myself, to go straight on
58 after that to deal with the Defendants' publication
59 witnesses, of whom there are five. I would expect that
60 they would easily finish within five days, taking us
55
1 through to Tuesday, 18th, at the latest really, leaving
2 another four, five, three or four, five or six (if one
3 counts the weekend) before the Defendants, themselves,
4 would start to give evidence on the 24th. I have allowed
5 them a week each because, unlike so many other witnesses,
6 their cross-examination will be quite long, I am afraid.
7
8 Then, my Lord, there will be time needed for legal
9 submissions at the end of the evidence and before speeches,
10 because there are a number of points of law which your
11 Lordship would, I respectfully submit, have to decide
12 before we make speeches so that we know how to cast them.
13 I have allowed -----
14
15 MR. JUSTICE BELL: What sort of topics do you have in mind?
16
17 MR. RAMPTON: Like the question of agency, the relationship of
18 malice to fair comment, the basis on which the court will
19 grant an injunction. Maybe that could be left until later.
20
21 MR. JUSTICE BELL: But why do they have to be made before
22 speeches?
23
24 MR. RAMPTON: Not from my point of view or from your Lordship's
25 point of view, because I anticipate that it would help the
26 Defendants to know what the law is before they actually
27 make their speeches; otherwise, they may well misdirect a
28 whole lot of their energy because they do not actually know
29 where things are aimed at. It is not their fault, of
30 course, but I thought it might help.
31
32 MR. JUSTICE BELL: Yes. An alternative would be that whatever
33 else is said about reducing submissions, or some of them,
34 to writing before speeches are given -- and I have a
35 completely open mind on that -- it might be very useful if
36 you were to prepare your submissions in writing on any
37 points of law so that the Defendants have them well before
38 they address me. That would be a help to me but also might
39 help Ms. Steel and Mr. Morris.
40
41 MR. RAMPTON: My Lord, that may well be a much better idea than
42 your Lordship sitting in court listening to me banging on
43 about the law. That may be much more helpful. I would
44 need some time to do that but, frankly, I do not really
45 mind when that should happen. I have left an allowance for
46 overrun just because things do have a tendency to slip, as
47 we all know, and your Lordship will see I have put a dotted
48 line at the end of Thursday, 18th July. There are three
49 reasons for that. The first is that my belief is that that
50 is when Mr. Morris' son's school holiday begins.
51
52 MR. MORRIS: That is absolutely right.
53
54 MR. RAMPTON: The second, and perhaps the most important reason
55 of all -- and I will tell your Lordship about the third
56 because I believe I have to -- the second reason is this,
57 that by 18th July we would have been in court about, well,
58 perhaps just over two-thirds of the time, but we will have
59 been trying this case for nearly two years. I may
60 sometimes seem indestructible but I am certainly not and I
56
1 know that -----
2
3 MR. JUSTICE BELL: It is just over two years. It will be two
4 years on 28th June.
5
6 MR. RAMPTON: That is right. What I had in mind was this and,
7 of course, it is entirely a matter for your Lordship.
8 Everybody will need a holiday, including (I imagine) even
9 your Lordship but I certainly will. The Defendants will
10 need time to write their closing speech, perhaps rather
11 more time than I will because I have the assistance of
12 Mr. Atkinson, Mrs. Brinley-Codd and so on. I had in mind
13 that if we stopped, apart from the fact that it is
14 Mr. Morris' school holiday -- not his but his son's school
15 holiday starts then -- if one allowed from 18th July a
16 period of, say, 12 weeks before one made the speeches.
17 That would give everybody time for a proper holiday away
18 from the case, forget about it -- it does not matter when
19 that happens; that is up to the people concerned -- and a
20 period of eight weeks in which to get a towel round one's
21 head and actually write a speech on the basis of all the
22 evidence given over the course of the past two years; thus
23 bringing one to about the second week of October to make
24 the speeches.
25
26 My Lord, I only float that as an idea. It appeals to me
27 for personal reasons, which is the third reason I want to
28 mention, is that it would inconvenience my private life no
29 end if I had to be in court in the week of 22nd July.
30 I made an arrangement for that week which, with hindsight,
31 looks extremely foolish, thinking that the case might be
32 finished by then. I hope that it will. That was the third
33 thing I was going to mention, as I think I ought to.
34
35 Beyond that, I hope your Lordship will think that what
36 I have done here, though obviously the blocks of evidence
37 or bits of the blocks of evidence can be shifted around,
38 represents a realistic way of looking at the future conduct
39 and, one says with some delight, conclusion of this case.
40
41 MR. JUSTICE BELL: Yes, thank you. What I would like you to do,
42 Ms. Steel and Mr. Morris, is when we come back on Thursday
43 the most important thing is to deal with your argument on
44 possible reamendment of the Statement of Claim with regard
45 to publication and your application to amend your defence
46 in the form which was handed up to me this morning. But,
47 when that is done, I would like to hear what you have to
48 say about the proposed schedule, and the particular matters
49 which I would like you to help me on are, firstly, that
50 your rainforest witnesses are put in as from Thursday, 18th
51 April, and it is important before we have the last hearing
52 this term to hear anything you wish to say about that,
53 because what would not help any of us is to come back at
54 the beginning of next term and find that you have
55 difficulty with one or more of your rainforest witnesses
56 during that period. If you know there is going to be real
57 difficulty, that might be a ground for rethinking the order
58 of witnesses in the schedule.
59
60 The second matter is what you would like to say about time
57
1 for preparation of speeches. I do not mind saying that at
2 a time when I thought we might finish at about the end of
3 May, I wondered whether the right course to take would be
4 not to sit again until early September, which would mean
5 that you have a major part of June and July and August,
6 subject to any holiday you took and other matters you had
7 to deal with. As it became more likely that the evidence
8 would go Mr. Rampton said towards the middle of June, I
9 have to say I thought perhaps the end of June, then I began
10 to wonder whether it was practicable to sit at all in
11 September and whether the most realistic approach was to
12 break off at the end of the evidence until the beginning of
13 the normal term, which is normally (as you know) somewhere
14 like 3rd October, something like that. You see, now that
15 Mr. Rampton thinks that we may not finish the evidence
16 until the middle of July, he is suggesting not starting
17 again until the second week in October. But I need to know
18 what you say about that.
19
20 The witnesses in the weeks immediately after the Easter
21 vacation -- that is from Tuesday, 16th April -- are the
22 most important, because we have to fill time then and not
23 come back after being away from court for nearly two weeks,
24 away from this court probably, subject to me delivering any
25 rulings, for over two weeks and then find we have witness
26 trouble almost as soon as we get back. But I would be
27 grateful if you could help me on those matters after we
28 have dealt with the question of amendment of the pleadings
29 on Thursday. 10.30 on Thursday.
30
31 (The court adjourned until Thursday, 28th March, 1996)
32
58