IN THE EUROPEAN COURT OF HUMAN RIGHTS

B E T W E E N:

(1) HELEN MARIE STEEL

(2) DAVID MORRIS

Applicants

-and-

UNITED KINGDOM

Respondent

A: The Applicants

B: The High Contracting Party

1. UNITED KINGDOM.

2. Preferred Language: ENGLISH

3. This case relates to the proceedings brought by McDonald’s against the Applicants because, McDonald’s claimed, the Applicants had damaged their reputation by campaigning and protesting against them. McDonald’s pursued the Applicants to a full hearing and the ensuing trial was the longest in English legal history. Throughout the Applicants were representing themselves, there being no legal aid for defamation proceedings in England and Wales. Inevitably this 'David and Goliath' battle attracted widespread attention and much criticism was made of the archaic libel laws in play. Books were written about the trial; and it has become the subject of intense legal debate. For example, Professor Marlene Nicholson of DePaul University, has written a widely respected article in the Wisconsin International Law Journal (2000, Vol.18, no.1), which concluded that in several important respects the proceedings brought by McDonald’s against the Applicants breach the European Convention on Human Rights. Also David Pannick ‘Exposing the flaws in Britain’s libel laws [see appx 6].

4. This application details the Applicants’ complaints that their Convention rights have been breached and sets out the facts and matters relied upon in support of this. It thus amplifies the brief description of the Applicants’ complaints set out in the letter to the Court of 20 September 2000 and acknowledged by the Court. All extensions of time for the drafting of this amplification of the Applicants’ complaints have been specifically discussed and agreed with the Court staff.

A: Introduction

5. On 20 September 1990 McDonald’s Corporation ("US McDonald’s") and McDonald’s Restaurants Limited ("UK McDonald’s") (collectively "McDonald’s") issued a writ against the Applicants claiming damages for alleged libel for the alleged publication by the Applicants of a leaflet entitled "What’s wrong with McDonald’s?" [Appendix 1].
6. McDonald’s pursued the Applicants to trial, the details of which are set out below. Before the trial was heard there were approximately 28 interim applications, involving numerous issues of law and fact, some lasting as long as five days.
7. Prior to trial the Applicants applied for legal aid. It was refused on 3 June 1992, because legal aid is not available for defamation proceedings in any circumstances. On 2 December 1992, the Applicants applied to the European Commission complaining of a breach of their rights under articles 6, 10, 13 and 14 of the Convention (application number 21325/93). On 5 May 1993, that application was declared inadmissible. That application has little (if any) relevance to the Applicants’ present application and is dealt with fully in para 400 below. It is significant that even as late as December 1993, the estimate for trial was only '3 to 4 weeks'. [Richard Rampton QC, 21.12.1993 - see court transcript 21.12.1993 p27D, Appx 7].
8. In March 1994, UK McDonald’s produced and published a press release about the case, and a leaflet for distribution to customers in their stores entitled "Why McDonald’s is going to Court". In May 1994 they also produced a document entitled ‘Libel Action – Background Briefing’ for distribution to the media and others. [Documents at Appx 2]. The leaflet and the Background Briefing were published throughout the duration of the trial. The publications accused the Applicants of lying and made other defamatory statements about their conduct (for example stating that the applicants had ignored several letters sent by the company, when in fact no such letters had been sent). They therefore counterclaimed for damages for libel from UK McDonald’s, since they believed this might require McDonald’s to provide evidence that the allegations in the ‘What’s Wrong with McDonald’s?’ factsheet were false.
9. The trial of the libel action against the Applicants took place between 28 June 1994 and 13 December 1996. The trial judge was the Mr Justice Bell ("Bell J"). The action was, unusually for a claim for libel, heard without a jury.
10. The trial was the longest in English legal history (either civil or criminal), lasting 313 court days. Bell J delivered his 762 page judgment on 19 June 1997 [Appx 3]. Bell J found for McDonald’s on a number of issues and for the applicants on other issues. As a result of his findings in favour of McDonalds, Bell J awarded McDonald’s Corporation £30,000 damages and McDonald’s Restaurants Ltd a further £30,000 damages. Mr Morris was severally liable for the whole amount. Mr Morris and Ms Steel were held jointly and severally liable to each claimant in respect of £27,500 of that amount. Ms Steel’s total liability was therefore £55,000. Mr Morris’ total liability was therefore £60,000.
11. In relation to the Counterclaim, although Bell J found McDonald’s had published false defamatory statements about the Applicants, he ruled these were protected by qualified privilege and so also entered judgment for McDonald’s on the Applicants’ counter-claims.
12. The Applicants appealed to the Court of Appeal. The hearing of the Applicants’ appeal before the Court of Appeal (Pill LJ, May LJ, and Keene J) began on 12 January 1999. It lasted 23 days, an unusually long period for a libel appeal. On 31 March 1999, the Court of Appeal delivered its 301 page judgment allowing, in part, the Applicants’ appeal [Appx 4].
13. The Court of Appeal allowed the Applicants’ appeal against the order of Bell J, dated 6 August 1997, with two further findings in the Applicants’ favour, to the extent that:

    13.1 the sum of £18,000 was substituted in place of each sum of £27,500 in respect of Ms Steel (her overall liability was accordingly reduced to £36,000);

    13.2 the sum of £20,000 was substituted in place of £30,000 in respect of Mr Morris (his overall liability was accordingly reduced to £40,000).

14. The Court of Appeal refused the Applicants’ application for permission to present a Petition of Appeal to the House of Lords.
15. The Applicants applied for permission to appeal from the decision of the Court of Appeal to the House of Lords. On 21 March 2000 the Appeal Committee of the House of Lords refused permission to appeal [Appx 5].

16. The Applicants complain that their rights under articles 6, 8, 10, 11, 13 and 14 of the European Convention ("the Convention") have been violated.
17. This application raises for the first time the important issue, in the context of English libel law, of the applicable principles under the Convention where an organisation or group of protesters publishes statements critical of the business practices. In that respect, it goes to the heart of the right to disseminate ideas and information under Article 10 and the right to engage in protest activities under Article 11 of the Convention.
18. It also raises the vital question of the extent to which the operation of the rules of English libel law in protecting the right to reputation of such corporations are necessary in a democratic society.
19. In particular, it raises the question of the extent to which organisations and individuals can put forward in public, views which have their place in public debate and concern matters of considerable importance, and in which they have a genuine and reasonable belief without being stifled by fear of costly and time-consuming libel litigation.
20. The significance of the Court of Appeal’s judgment in the applicants’ case for those participating in public debate through peaceful protest and campaigning, which includes handing out leaflets is enormous: unless each and every person participating in such activity is in a position – without legal aid, advice and/or assistance (see below) – to prove the truth of the contents, s/he will be vulnerable to defamation proceedings. The Applicants submit that the chilling or inhibiting effect of this on the free expression of ideas through public debate should not be underestimated.
21. This application also raises the question of whether it is necessary in a democratic society for distributors, who are not the authors, of a leaflet, to prove more than that they had a reasonable belief in the truth of the contents of the leaflet.
22. In summary, it is submitted that the Applicants’ Convention rights have been breached in the following respects:
23. Article 10: the Applicants’ rights under article 10 were violated by (a) the requirement that they prove the truth of allegations concerning matters of public interest and /or complex or scientific issues; (b) the absence of a defence of reasonable belief; (c) coupled with the absence of legal aid.
24. The applicants also contend that their rights under Article 10 were violated in that (a) the matters complained about by McDonalds in the libel proceedings and which were found by the trial judge to be defamatory were already in the public domain including in circumstances in which McDonalds had consented to their publication; (b) the categorisation of many of the statements contained in the leaflet and complained about by McDonalds as statements of fact, rather than comment, is too rigid in domestic law and, in the applicants case, inconsistent with the protection afforded to free speech under Article 10 of the Convention – the effect of such categorisation being to deprive the applicants of a ‘fair comment’ defence; and (c) neither Bell J nor the Court of Appeal took any (or sufficient/appropriate) account of the nature and character of the leaflet complained of when attributing meanings to the words and cartoons used in it – the leaflet was a campaigning document, and its style reflected this fact by the inclusion, among other things, of satirical images.
25. Further the applicants maintain that there is a fundamental incompatibility between the strong protection afforded to trading corporations such as McDonalds and the requirements of Article 10 of the Convention. Although such corporations only have a trading reputation, damage to this reputation is presumed without proof of trading loss and, in McDonalds’ case, in the teeth of trading success.
26. The applicants also raise under Article 10 the question of damages. The total awards against the applicants are so excessive that neither of them has any prospect whatsoever of being able to pay them. Even after reduction by the Court of Appeal the remaining liability of £36,000 and £40,000 for each of the applicants respectively is far beyond their means and bears no relation whatsoever to any injury alleged by McDonalds, particularly in the light of the findings made against the company. In this respect it is noteworthy that McDonalds did not claim to have suffered any loss in trade at all as a result of the distribution of the leaflet complained of; on the contrary, their profits soared before, during and after the libel proceedings. The chilling effect of such a high award of damages is obvious: most campaigners with no resources simply cannot afford to expose themselves to the risk of such an award and are likely to shy away from any expression of their genuinely held beliefs.
27. Article 6: the litigation against the Applicants for defamation breached their right to a fair trial under article 6 of the Convention as follows: the Applicants had only minimal financial resources with which to defend the claim brought against them. They could not afford legal representation. Under English law the burden of proving the truth of the allegations in the leaflets complained of was on the Applicants. They were unable properly to investigate and prepare their defence. The Applicants were refused legal aid. This was a blanket ban, made without reference to the applicants’ means, the complexity of the case they faced and without any regard to the merits of their defence or the effect of the proceedings on their Convention rights under Articles 6, 10 or 11. The Courts failed to ensure the Applicants were protected by the equality of arms principle in that McDonald’s were allowed to withold documents and blank out parts of pages which may very well have assisted the Applicants in their defence of the case. Further, McDonald’s were permitted to make major changes to their claim against the Applicants on three substantial issues (publication, animals and nutrition) after the trial was already underway and much of the evidence had been heard, and this was compounded by a refusal to grant an adjourment of the trial to allow the Applicants time to prepare to meet the new case.
28. Article 8: the failure by the trial judge and the Court of Appeal to rule that the use by McDonald’s of inquiry agents, both before and after proceedings had been issued against the Applicants, to infiltrate London Greenpeace, follow people home and break into the group’s office, amounted to an abuse of process and constituted a violation of the Applicants’ right to privacy. In particular, McDonalds agents gained access to confidential and private information both before and after proceedings were issued, the full extent of which has never been revealed.
29. Article 11: the decision of the trial judge and the Court of Appeal constituted a violation of the Applicants’ right to freedom of assembly and protest. In particular, the finding that mere support for, or involvement in a campaigning group can give rise to liability in libel proceedings for each and every publication of the group operates to inhibit, and ultimately to destroy, the rights of individuals to freely associate to discuss and further their common beliefs and ideals.
30. Article 6 together with article 13: the proceedings before the trial judge and the Court of Appeal, and the decision of, the Appeal Committee of the House of Lords, amounted to breaches for which there was no effective remedy in domestic law as required by article 13 of the Convention.
31. Article 14: The Applicants complain that their rights under Article 14 have also been breached. They were unable to defend themselves properly in court because they were impecunious and, without legal aid, they were simply unable to prepare and present the case properly. Others in a comparable position, but with means, have an unjustifiable advantage over the Applicants. While, inevitably, there will always be some difference in the means of those before the courts to defend themselves, the blanket refusal of legal aid cannot be justified as proportionate, particularly where the legal proceedings complained of were the longest, and amongst the most complex, in English legal history.

32. McDonald’s Corporation is a company incorporated in the State of Illinois in the United States of America. It has its headquarters at Oakbrook near Chicago. It is responsible for a vast chain of McDonald’s quick service restaurants throughout the world. The restaurants are owned and run by subsidiaries of McDonald’s Corporation, or by franchisees or owner operators, or by joint ventures of McDonald’s Corporation or its subsidiaries and outside partners.
33. At the end of 1990, there were about 11,800 McDonald’s restaurants in a total of 53 countries. About 8,600 of the restaurants were in the United States. Total systemwide sales were about US$18.75 billion. By the end of 1995, there were about 18,400 restaurants in a total of 89 countries. About 11,400 restaurants were in the United States. Total systemwide sales had grown to nearly US$30 billion. McDonalds worldwide was (rightly) described by the Court of Appeal as ‘a gigantic enterprise with immense economic strength’ (CA p.17).
34. The first McDonald’s restaurant in Britain was opened in 1974 in Woolwich, south east London. At the end of 1990 there were about 380 McDonald’s restaurants in Britain. There were about 650 by the end of 1995.
35. In the UK McDonalds had a policy of vigorously pursuing those critical of its practices. During the mid-1980’s, McDonald’s forced apologies or retractions from the BBC, The Guardian, and the Scottish TUC and many other bodies [Appx 8]. It also effectively closed down the Transnational Information Centre, stopped the transmission of at least one [T.V.] film and silenced a play.1

(b) London Greenpeace

36. London Greenpeace was formed in 1971. Since that time it has campaigned on a variety of social and environmental issues. At the time of the alleged libel the group ran a number of different campaigns, of which the campaign against McDonald’s was just one. The practices of huge, powerful and influential corporations, such as McDonalds, have inevitably attracted criticism, particularly from those concerned to preserve the environment worldwide. London Greenpeace is one of a number of campaigning groups which have, from time to time, sought to draw attention to the practices of McDonalds. The group’s activities have included meetings, demonstrations and the production and distribution of leaflets, including the leaflet complained of by McDonalds in the libel proceedings against the Applicants. The Applicants submit that such activities are essential to the notion of a democratic society, which is integral to the proper construction of the Convention as a whole and Article 10 and 11 in particular.

(c) The Applicants

37. The contrast between the economic power and influence of McDonalds and the applicants could not be more stark.
38. During the relevant period, Ms Steel was at times employed as a part-time bar worker earning approximately £65 per week. At other times she was unwaged and wholly dependent on income support.
39. Mr Morris, a former postal worker, was unwaged and entirely dependent on income support. He was also a single parent, with day to day responsibility of his son, Charlie, aged 4 when the trial began.

(d) The leaflet complained of

40. In the mid 1980s London Greenpeace began an anti-McDonald’s campaign. In 1986 a six page leaflet (also referred to as ‘the factsheet’) – "What’s wrong with McDonald’s? Everything they don’t want you to know." – was produced and distributed as part of that campaign. This leaflet was last reprinted in early 1987. At this time London Greenpeace produced a shorter 2 sided A5 leaflet also entitled "What’s wrong with McDonald’s?". In this case, McDonald’s only complained about the 6 page leaflet.
41. The applicants case was that at the time the leaflet complained of was reprinted in 1987, a decision was made that it was too costly to distribute on the street, and would instead be saved for persons requesting more information. The shorter leaflet was produced for widespread distribution. Further that by the time McDonald’s initiated legal action against the applicants, the leaflet complained of was out of print.
42. The leaflet [Appx 1] concerned certain of McDonald’s business practices and those of the food industry, or US multinationals, or capitalism in general and the effects of those business practices in the context of the international cash crop economy and hunger in the ‘Third World’; the destruction of tropical forests; diet, nutrition and heart disease and cancer; advertising and exploitation of children; rearing and slaughter of animals; food safety; staff working conditions; and McDonald’s attitude to trade unions. The leaflet stated that the criticisms also applied to McDonald’s high street competitors.
43. Bell J accepted that "the leaflet was published at a time when there was growing public awareness of issues affecting the environment and the relationship of diet to health. Animal welfare and mass media advertising attracted campaigners. Working conditions have always been the subject of debate. A "multinational" like McDonald's has an influence for good or ill in all those areas. That influence grows and spreads as the number of McDonald's restaurants increases and the system opens up in new countries."2
44. The Applicants were not the authors of the leaflet complained of. Originally McDonald’s had not asserted that they were, but part way through the trial, in 1996, McDonald’s amended their Statement of Claim to allege that the Applicants had produced the leaflet in question for publication and distribution. However, that allegation was later dropped against Ms Steel. The trial judge found that "Mr Morris participated in the production of the leaflet complained of in 1986, although the precise part which he played in its production cannot be identified".3 This is fiercely disputed, and Bell J himself in fact stated he was not satisified that Mr Morris played any part in writing it [Appx 3 p732]. The judge found that Ms Steel did not participate in that initial production. Her responsibility, according to the trial judge, began in early 1988 and took the form of "participation in the group's activities, sharing its anti-McDonald's aims" which included distribution of the leaflet. Mr Morris was also found to be responsible on that basis as well because of the finding of his involvement in the initial production.4 It now transpires that McDonalds held back vital documents [Appendix 9] at trial which demonstrated that, far from being actively involved in any campaign against McDonalds at the relevant times, Mr. Morris, in fact, played little or no part in the campaign.
45. It should be noted that this was a very thin basis indeed for a libel action. As is well known, libel actions are normally brought against the authors, journalists and/or constituted bodies responsible for generating and publishing (in the strict sense) allegedly defamatory statements. So far as the applicants are aware, proceedings have never previously been based on the fact that an individual or individuals supported a campaign and/or handed out leaflets to members of the public as an act of support for that campaign.
46. Neither the trial judge nor the Court of Appeal made a finding that the leaflet had any impact on the sale of McDonald’s meals, or had actually damaged its trading reputation. As noted above, McDonalds’ profits have remained unaffected by the leaflet.
47. The circulation of the leaflet was very limited. The trial judge found that the Applicants were both responsible for the publication of "several thousand copies" of the leaflet. The finding was derived from the evidence of one of the witnesses that 2,000 or 3,000 copies of the leaflet had been printed in 1987, sometime prior to the first alleged date of publication by the Applicants, and from the judge’s inference that there must have been consequential publication as a result of the direct publication.5 However, there was never any evidence of publication on this scale.

(e) Legal Aid

48. After the proceedings were served on the applicants they applied for legal aid to defend themselves. This was refused on 3 June 1992. The applicants lodged a complaint to the (then) European Commission on Human Rights in relation to this refusal of legal aid on 2 December 1992. That complaint was declared inadmissible on 5 May 1993 (see HS and DM v United Kingdom Appln No. 21325/93). The applicants make it clear that the present complaint is wholly different to the previous complaint. For that reason, a section has been added at the end of this document distinguishing the two applications. See para 400.

(f) The trial.

49. Libel trials are one of the few remaining civil actions which are usually tried by a jury. Section 69 of the Supreme Court Act 1981 provides that:

"69. – (1) Where, on the application of any party to an action to be tried in the Queen’s Bench Division, the court is satisfied that there is in issue –

a claim in respect of libel, slander, …

the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury."

50. However, Bell J ruled that the action should be tried by a judge sitting alone because it involved prolonged examination of documents and scientific investigation. His decision was upheld by the Court of Appeal. This ruling confirmed that Bell J and the Court of Appeal considered the trial to be too complex for a jury composed of lay people [Appx 10].
51. This is of considerable significance. The applicants were themselves effectively ‘lay people’ in the sense that they had no knowledge of libel law and no prior access to, or familiarity with the voluminous and scientific documentation relied upon at trial, and thought to be too complicated for a jury. In the circumstances, it is submitted, there should have been a review – either when Bell J ruled on mode of trial – or shortly thereafter whereby the domestic authorities considered whether it was appropriate for legal proceedings to continue against private individuals with no legal representation and no money. No such review took place.
52. The trial took place over 313 court days. 130 witnesses gave oral evidence, 59 for the Applicants, 71 for McDonald’s and there were also many additional written witness statements under the Civil Evidence Act. [See Appx 11, analysis of the proceedings]. There were about 40,000 pages of documents. As noted above, this made it the longest, most detailed, trial in English legal history. Transcripts of the trial itself ran to approx 20,000 pages.

(g) Transcript of proceedings.

53. A party to proceedings is required to pay a fee (approx £750 per day, or split £375 each for two parties) to obtain an immediate transcript of the proceedings. McDonald’s paid the fee and had the benefit of a daily transcript. McDonald’s initially provided the Applicants with copies of the daily transcript, stating that it would be fair to do so [See Appx 12]. But on 3 July 1995, McDonald’s stated that they would no longer provide the Applicants with daily transcripts unless they undertook not to use them for any purpose other than the conduct of their case i.e. not to use them to publicise what had been said in court [See Appx 12] (no such restriction was placed on the availability of the transcripts to McDonald’s). This was not a legal requirement, but a requirement imposed by McDonalds purely because they had the means to pay for the transcripts and hence the power to demand undertakings.
54. The trial judge refused to order McDonald’s to supply transcripts in the absence of such an undertaking. The Applicants declined to give such an undertaking. The Court also refused to order McDonald’s to allow the Applicants to purchase the transcripts immediately at reduced cost, something the transcribers were willing to do, providing McDonald’s would agree to it. The Applicants appealed but the Court of Appeal ruled that Bell J had no power to supply the transcripts or to order McDonald’s to do so. McDonald’s thereafter no longer provided the Applicants with daily copies. The Applicants could not afford to obtain their own daily transcript at the full cost. The Applicants were only able to purchase the transcripts, using donations from the public, at a reduced cost (£25 per day) 21 days after the evidence had been given.6 This substantially reduced their ability to prepare their case by reference to the transcripts and their ability to cross-examine witnesses many of whom gave evidence over more than one day eg McDonald’s Corporation Director of Global Trade and Purchasing, Ray Cesca (7 days) and McDonald’s UK President Paul Preston (4 days) [See Appx 13]. [It is common practice in England and Wales to review transcripts overnight when cross-examining a witness who gives evidence for more than a day.] Further the unavailability of transcripts posed a particular difficulty to the Applicants because they were unrepresented and therefore did not have solicitors available to take notes of the proceedings whilst they cross-examined witnesses or advanced legal argument. Normally counsel would concentrate on cross examination whilst the solicitors took notes, it is difficult to do both at the same time effectively.

(h) The Plaintiff’s change of claim in relation to the issue of publication of the leaflet

55. On 20th September 1990 McDonald’s served the originating writ and statement of claim on the applicants. The Statement of Claim alleged (para 3) that ;

"On divers occasions in 1989 and 1990 including 2nd October 1989, 16th October 1989, 21st October 1989, 25th January 1990, 22nd February 1990 and 26th April 1990 the Defendants and each of them have published or caused to be published and/or been party to or procured the distribution and publication within the jurisdiction of this Honourable Court of a leaflet entitled: "What's wrong with McDonald's?" containing the following words defamatory of the plaintiffs" etc.

56. On 3rd May 1991, in response to the Applicants request for further details, McDonald’s served further and better particulars of their case. These included the following points:

Under Paragraph 3

Of "On diverse occasions in 1989 and 1990"

Request
18. Specify each and every such occasion that the Plaintiffs seek to rely upon at trial of this matter.

Answer
18 and 19. The Plaintiffs will only rely upon the specific dates which have been pleaded. In relation to the Second Defendant (Steel) it is the Plaintiff’s case that she published the leaflet containing the said words on 16th October 1989, 26th January 1990 and 22nd February 1990, and that through her membership or involvement in the activities of Greenpeace, was a party to or procured the distribution and publication of the said leaflet on the other specified dates. In relation to the Fourth Defendant (Morris) it is the Plaintiff’s case that he published the said leaflet on the 26th January 1990 and 26th April 1990, and that he was a party to or procured the distribution and publication of the said leaflet on the other specified dates.

Request
22. State whether it is the Plaintiffs’ case that the Defendants or any of them were the authors of the said leaflet. If so specify which Defendant was allegedly the author and where and when it is alleged the said leaflet was written.

23. State whether it is the Plaintiffs’ case that the Defendants or any of them were the printers of the said leaflet. If so specify which Defendant was allegedly the printer and where and when it is alleged the said leaflet was printed.

Answer
22. It is not the Plaintiffs’ case that these Defendants were the authors of the said leaflet. The author of the said leaflet is at present unknown to the Plaintiffs.

23. It is not the Plaintiffs’ case that these Defendants or either of them were the printers of the said leaflet.

57. On 26th April 1996, despite strenuous opposition from the Applicants, McDonald’s were given leave by Bell J to amend their Statement of Claim to:

3(a) "At some time before October 1989 (as to which the Plaintiffs cannot be specific), the Defendants and each of them produced for publication and distribution within the jurisdiction of this Honourable Court a leaflet entitled "What's Wrong with McDonald's?" containing the following words defamatory of the Plaintiffs: (Words complained of here set out)"

3(b) "By 'produced' is meant that the Defendants and each of them prepared and/or compiled and/or wrote and/or edited and/or printed or arranged to be printed the said leaflet for the purposes of distribution and publication or caused or were party to or procured or assisted in or authorised the same. Accordingly, the Defendants and each of them have caused the publication of the said leaflet wheresoever and whensoever it has been distributed and published within the jurisdiction since 21st September 1987 and up to the date of the writ herein"

3(c) Further or alternatively, the Defendants and each of them by virtue of their involvement in the anti-McDonald's activities of Greenpeace (London) (particulars of which have already been given) have caused or procured or been party to or authorised the distribution and publication of the said leaflet wheresoever and whensoever it has been distributed and published since the 21st day of September 1987 and up to the date of the Writ herein.

3(d) In any event, on divers occasions in 1989 and 1990 (particulars of which have already been pleaded), the Defendants and each of them published or caused to be published and/or were party to or procured the distribution and/or publication of the said leaflet.

58. This amendment occurred after the Plaintiffs had begun calling their witnesses on the publication issue [See Appx 13], but the Applicants were refused an adjournment of the trial in order to prepare their case to meet the new allegations. The Applicants appealed against the trial Judge’s decision to allow the Plaintiff’s to amend their claim at this late stage. On 27th June 1996, after all the Plaintiff’s publication evidence had been heard in the main action, the Court of Appeal upheld the trial Judge’s decision.
59. The Applicants unsuccessfully raised this as an issue during the final Appeal.

60. The Plaintiffs original Statement of Claim alleged in relation to nutrition, that the meaning of the leaflet was that McDonald’s;

"Are deliberately misleading the public as to the nutritional value of the food they sell when they know full well that the contents of an average McDonald's meal are linked with cancers of the breast and bowel, and heart disease".

61. On 15th December 1993, McDonald’s served a formal notice of Admission of the following fact;

"That there is a considerable amount of evidence of a relationship between a diet high in saturated fat and sodium, and obesity, high blood pressure and heart disease."

62. On 14th December 1994 (after all their intended experts on the nutrition issue had been called and cross-examined, and most of the Applicants experts had given evidence), McDonald’s were given leave to amend the nutrition paragraph of their Statement of Claim to;
McDonald’s;
1. Sell meals which cause cancer of the breast and bowel and heart disease in their customers

2. Despite knowing that that is an accepted medical fact, deliberately and dishonestly conceal that fact from the public by publishing nutritional guides which a) suppress that fact; and b) falsely claim that their meals are a useful and nutritious part of any diet."

63. Following this change to the Statement of Claim by McDonald’s on 20 November 1995, Bell J ruled on the meaning of the paragraph entitled "What’s so unhealthy about McDonald’s food". He concluded that that part of the leaflet bore the meaning:

"… that McDonald’s food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real risk that you will suffer cancer of the breast or bowel or heart disease as a result; that McDonald’s know this but they do not make it clear; that they still sell the food, and they deceive customers by claiming that their food is a useful and nutritious part of any diet".7

64. The Applicants appealed against his order by Notice of Appeal dated 12 February 1996. The grounds of appeal were expressed in 7 paragraphs.
65. The appeal was heard by the Court of Appeal (presided over by Hirst LJ) on 2 April 1996. By letter dated 1^st April 1996, Ms Steel had written on behalf of both Applicants to the Listing Officer of the Civil Appeals Office giving notice that the Applicants were withdrawing the first 6 grounds of their appeal and saying that the sole question which they now asked the Court of Appeal to consider was the seventh ground viz., whether the trial judge was wrong in that he determined a meaning which was more serious than that pleaded by McDonald’s in the Statement of Claim.
66. The Applicants withdrew the other 6 grounds because they had no real opportunity to pursue those grounds of appeal as a result of constraints of time and lack of legal advice [See Appx 14]. It was their understanding that it would remain open to them to raise those matters at a full appeal after the conclusion of the trial.
67. The Court of Appeal heard the appeal on this limited basis (ie., the seventh ground only) and decided the one remaining issue against the Applicants, holding that the meaning determined was significantly less severe than that pleaded by McDonald’s. Hirst LJ concluded his judgment as follows: "From now on the case will, as I understand it, proceed on the basis of the meaning as upheld by the judge".
68. In his final judgment, when all the evidence had been adduced and the parties had made their submissions, Bell J said (at the suggestion of McDonalds) that the meaning which he had found needed elaboration in two respects. First, the words "eating it [McDonald’s food] …" should be read as meaning "eating it more than just occasionally", since the reader of the leaflet would not expect to be adversely affected by the occasional McDonald’s meal. Secondly, the words "very real risk" were meant in the sense of "a serious or substantial risk, although falling short of probability; a risk which the ordinary, sensible reader of averagely robust temperament would worry about; not a minimal or bare risk which is there, but which one can get through life without undue concern for".

(j) Meanings generally.

69. The trial judge held that the Applicants had published the leaflet. In the main, he also held that the words complained of had the meanings contended for by McDonald’s, or in some instances lesser meanings within the compass of the meanings alleged by McDonald’s, and that they were defamatory of McDonald’s. With one exception, he held that the defamatory meanings were statements of fact, not comment, and that accordingly the Applicants had to rely on the defence of justification. This is highly significant because the Applicants contend that, had they been represented, they would have been able to advance more powerful arguments as to meanings generally and thus reduce the scope of their task in proving justification. This also applies to other aspects of meaning – the generalisations in the text, its overall context and the rather traditional use of satire and/or exaggeration.
70. Bell J found that;
the leaflet accused McDonald’s of being responsible for starvation in the Third World, of destroying vast areas of Central American rainforest, of serving unhealthy food with a very real risk of cancer of the breast or bowel and heart disease and food poisoning, of lying when it claimed to use recycled paper, of exploiting children with its advertising and marketing, of cruelty to animals, and of treating its employees badly; all the while deceiving the public and hiding its true nature behind a clean, bright image".8
71. The applicants contend that most of these findings stretched the meanings of the various passages in the leaflet complained of by McDonalds, sometimes to the point of absurdity. This point is developed in the submissions on Article 10 below, but in brief, the applicants submit that:

72. In order to defend the libel claim brought by McDonald’s the unrepresented Applicants therefore had to obtain and adduce evidence on all of the matters listed above. The sheer size of this task was overwhelming and, it is submitted, was impossible to discharge without legal advice and assistance, including some provision of resources for the investigation and preparation of witnesses. It is submitted that, had legal aid been granted, such resources would have been made available under the legal aid scheme then in operation in England and Wales.
73. This is of considerable importance. Under the then legal aid scheme the applicants would have had the benefit of lawyers to help identify important evidential issues, to assist in locating and properly preparing the evidence of relevant witnesses and drafting the necessary witness statements. The problems caused by the lack of such assistance were cumulative. Without legal assistance and/or resources, the applicants were simply unable to locate all relevant witnesses. Where witnesses did come forward it was impossible to prepare all relevant matters with them; and the resulting witness statements were often handwritten and incomplete. When half-way through the trial, Bell J ordered that witnesses would no longer be allowed to expand on their witness statements, the applicants were effectively shut out from presenting key aspects of their case.

(l) The trial judge’s conclusions.

74. Bell J summarised his main findings on McDonald’s claims as follows:

"In summary, comparing my findings with the defamatory messages in the leaflet, of which the Plaintiffs actually complained, it was and is untrue to say that either Plaintiff has been to blame for starvation in the Third World. It was and is untrue to say that they have bought vast tracts of land or any farming land in the Third World, or that they have caused the eviction of small farmers or anyone else from their land.

It was and is untrue to say that either Plaintiff has been guilty of destruction of rainforest, thereby causing wanton damage to the environment.

It was and is untrue to say that either of the Plaintiffs have used lethal poisons to destroy vast areas or any areas of Central American rainforest, or that they have forced tribal people in the rainforest off their ancestral territories.

It was and is untrue to say that either Plaintiff has lied when it has claimed to have used recycled paper.

The charge that McDonald’s food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it more than just occasionally may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real, that is to say serious or substantial risk that you will suffer cancer of the breast or bowel or heart disease as a result, and that McDonald’s know this but they do not make it clear, is untrue. However, various of the First and Second Plaintiffs’ advertisements, promotions and booklets have pretended to a positive nutritional benefit which McDonald’s food, high in fat and saturated fat and animal products and sodium, and at one time low in fibre, did not match.

It was true to say that the Plaintiffs exploit children by using them as more susceptible subjects of advertising, to pressurise their parents into going into McDonald’s. Although it was true to say that they use gimmicks and promote the consumption of meals at McDonald’s as a fun event, it was not true to say that they use the gimmicks to cover up the true quality of their food or that they promote them as a fun event when they know that the contents of their meals could poison the children who eat them.

Although some of the particular allegations made about the rearing and slaughter of animals are not true it was true to say, overall, that the Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food.

It was and is untrue to say that the Plaintiffs sell meat products which, as they must know, expose their customers to a serious risk of food poisoning.

The charge that the Plaintiffs provide bad working conditions has not been justified, although some of the Plaintiffs’ working conditions are unsatisfactory. The charge that the Plaintiffs are only interested in recruiting cheap labour and that they exploit disadvantaged groups, women and black people especially as a result, has not been justified. It was true to say that they Second Plaintiff [UK McDonald’s] pays its workers low wages and thereby helps to depress wages for workers in the catering trade in Britain, but it has not been proved that the First Plaintiff [US McDonald’s] pays its workers low wages. The overall sting of low wages for bad working conditions has not been justified.

It was and is untrue to say that the Plaintiffs have a policy of preventing unionisation by getting rid of pro-union workers".9

75. These main findings have to be put into proper context. There were, inevitably, numerous detailed findings under each main issue. And, the Applicants submit:

76. It should be noted that McDonald’s formally accepted Mr Justice Bell’s findings against them (extracts below), stating in writing on 5.01.1999 that the judge was ‘correct in his conclusions’. [See Appx 15].
77. For this section the Applicants rely solely on the detailed Judgment of Bell J. A schedule of findings and subfindings of Bell J. has been prepared and set out at Appendix 16. Using this schedule the applicants rely on the following extracts to show that the findings of Bell J. supported each of the sections of the leaflet . It should be noted that there was a great deal of additional evidence which, it is contended, proved further facts and sub-facts, although not to the satisfaction of the judge. They are not referred to in this submission.

Economic Imperialism And Hunger

78. The Applicants rely on the extracts in the Findings and Sub-Findings of Fact From Justice Bell’s Judgement [Schedule Appx 16]. Including in particular: Nos 1, 4-7, 9, 10, 12, 13, 20, 27, 28, 30, 32, 34, 35, 37, 43, 45, 46, 50, 59, 60, 63, 69, 71, 72, 77, 78-83, 85-88.

The applicants submit that it was clearly established and proven that:

79. International cash crop supply chains are developed for benefit of multinationals and for exports, in particular for the beef industry. (Extract nos: 1, 4, 7, 9, 12, 13, 20, 28-30, 32, 34, 35, 37, 45, 50, 60, 71, 72, 78-83, 85-89.)
80. Consequently there is displacement of subsistance farmers. (Extract nos: 4-9, 32, 34-7, 43, 59, 60, 63, 69, 71, 72, 77-80)
81. The international trade in animal feed (for example Brazilian soya used for McDonald’s cattle in Germany) is part of the cash crop supply chains. (Extract nos: 60, 78-83, 85-88)
82. McDonald's beef usage in poor countries, and international movement of exported beef too, including to UK) was established. [It should be noted that Bell J's mathematical calculations underestimated % of Brazilian cattle used by a factor of x7-10 - see Appx 17]. (Extract nos: Almost all the extracts, especially 50-1, 87)

Tropical Forests & Beef Supplies

83. The applicants rely on the extracts in the Findings and Sub-Findings of Fact From Justice Bell’s Judgement [See Appx 16]. Including in particular: Nos 1-13, 20-29, 30, 32-41, 43-52, 56, 57, 59, 60, 62-72, 74-77, 78-89.

The applicants submit that it was clearly established and proven that:

84. US Corporations and the beef industry in general are contributing to an ecological catastrophe by their responsibility for tropical forest deforestation for cattle ranching in their pursuit of profits. (Extract nos: 3-9, 11-13, 28-30, 32, 34-7, 43-45, 50-1, 57, 59, 60-8, 70-6, 79, 86, 89)
85. McDonald's is probably the world's largest user [see nos 85 & 86] and promoter of beef products (This was not contested).
86. The ever-increasing global and/or US demand for beef is a main cause of tropical forest clearance. (Extract nos: especially 3-9, 13, 28, 30, 80, 89)
87. McDonald's uses beef reared in countries with tropical forest clearances, (Almost all extracts).
88. McDonald’s has used beef from regions in which cattle ranching has caused the disp