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


APPLICATION PURSUANT TO ARTICLE 34 OF THE EUROPEAN
CONVENTION ON HUMAN RIGHTS AND RULES 45 AND 47
OF THE COURT

 

 

 




I. THE PARTIES 4

A: The Applicants

4

B: The High Contracting Party

5
PREAMBLE 5
II STATEMENT OF FACTS 6

A: Introduction.

6

B: Summary of issues.

10

C: Detailed description of parties and history of domestic civil proceedings.

15

(a) McDonald's.

15

(b) London Greenpeace.

17

(c) The Applicants.

17

(d) The leaflet complained of.

18

(e) Legal Aid

21

(f) The trial.

22

(g) Transcript of proceedings.

23

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

25

(i) The interim appeal to the Court of Appeal in relation to the Nutrition meaning.

27

(j) Meanings generally.

30

(k) The breadth of issues.

32

(l) The trial judge's conclusions.

33

(m) The Issues - what was proven for each issue

34

Economic Imperialism And Hunger

35

Tropical Forests & Beef Supplies

36

Packaging, Recycling And Waste

38

Nutrition

38

Advertising

40

ANIMALS

40

Food Safety

40

Employment

42

Summary of findings

42

(m) Publication

43

(n) Counterclaim.

43

(o) Damages.

44

(p) Costs.

45

(q) The Court of Appeal.

46
III: DOMESTIC LAW AND PRACTICE 51

(a) Libel proceedings.

51

(b) Limitation period

53

(c) Publication.

53

(d) Meanings

54

(e) Burden of proof.

54

(f) Status of multi-national corporations.

55

(g) Defences.

55

a. Justification

55

b. Privilege

56

c. Fair comment

58

(h) Legal aid

59
IV STATEMENT OF ALLEGED VIOLATION(S) OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS. 60

A: VIOLATION OF ARTICLE 10.

60

General principles.

60

SUBMISSIONS ON ARTICLE 10

67

(a) Burden of proof

69

(i) The public interest

70

(ii) The mode of publication.

70

(iii) The ease of proof

71

(iv) The means of the parties

73

(v) The reasonableness of any belief in the truth of the words complained of.

74

(vi) The nature of the statements complained about.

75

Contrast to position in the US

78

Conclusion on burden of proof.

81

(b) The extent to which the right to a 'reputation' in relation to multinational and other similar bodies should outweigh free speech under Article 10.

84

(c) Matters already in the public domain.

88

Veggies agreement

88

Sources for each specific issue

93

Tropical/Rainforests

93

Forests.

95

Recycling, packaging and waste

95

Litter

95

Nutrition

96

Advertising

96

Animals

96

Food Safety

97

Employment conditions - Pay and conditions and anti-union practices

97

(d) The distinction between fact and comment.

99

(e) Approach to meanings generally

100

Section relating to Economic Imperialism and Hunger, and Tropical Forests and Beef Supplies / 'Starvation in the Third World and Destruction of Rainforest'.

101

Section relating to Packaging, Recycling and Waste.

106

Nutrition.

110

Food Safety / 'Food Poisoning'.

114

Employment.

122

(f) Assessment of the facts

127

(g) Damages.

127

Summary of Article 10 complaint.

131

VIOLATION OF ARTICLE 6.

134

(i) Lack of legal aid and/or representation.

135

THE 'HARINGEY AFFIDAVIT'

141

Oppression.

146

Amendment of Claim part way through trial

148

Delay

153

Reversal of burden of proof/acceptable assessment of facts

155

Failure to require labelled exhibits of leaflets in court when there were several different versions, only one of which was subject of libel action.

155

Spies remaining in group after service of writs

156

Discovery of spies notes

157

VIOLATION OF ARTICLE 8

161

VIOLATION OF ARTICLE 11

162

General principles

162

SUBMISSION RE ARTICLE 11

168

VIOLATION OF ARTICLE 13

169

VIOLATION OF ARTICLE 14

170

Relevance of HS and DM v United Kingdom.

170

STATEMENT RELATIVE TO ARTICLE 35 OF THE CONVENTION.

171
V. OBJECT OF THE APPLICATION AND PROVISIONAL CLAIMS FOR JUST SATISFACTION. 172
VI. STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS. 173
VII. LIST OF DOCUMENTS. 173
VIII DECLARATION AND SIGNATURE 173

 

I. THE PARTIES

A: The Applicants

 

1st Applicant

2nd Applicant

  1. Surname:

STEEL

MORRIS

  • First name(s):
  • HELEN

    DAVID

  • Nationality:
  • BRITISH

    BRITISH

  • Occupation:
  • UNWAGED

    UNWAGED

         
         
         
         
       
       
       
         

    B: The High Contracting Party

    1. UNITED KINGDOM.

    2. Preferred Language: ENGLISH

    PREAMBLE
    1. 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].

    2. 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.
    II STATEMENT OF FACTS

    A: Introduction

    1. 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].
    2. 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.
    3. 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].
    4. 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.
    5. 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.
    6. 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.
    7. 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.
    8. 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].
    9. 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).

    1. The Court of Appeal refused the Applicants’ application for permission to present a Petition of Appeal to the House of Lords.
    2. 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].
    B: Summary of issues
    1. The Applicants complain that their rights under articles 6, 8, 10, 11, 13 and 14 of the European Convention ("the Convention") have been violated.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
    7. In summary, it is submitted that the Applicants’ Convention rights have been breached in the following respects:
    8. 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.
    9. 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.
    10. 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.
    11. 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.
    12. 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.
    13. 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.
    14. 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.
    15. 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.
    16. 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.
    C: Detailed description of parties and history of domestic civil proceedings

    (a) McDonald's.

    1. 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.
    2. 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).
    3. 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.
    4. 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

    1. 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

    1. The contrast between the economic power and influence of McDonalds and the applicants could not be more stark.
    2. 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.
    3. 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

    1. 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.
    2. 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.
    3. 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.
    4. 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
    5. 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.
    6. 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.
    7. 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.
    8. 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

    1. 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.

    1. 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:
    2. "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."

    3. 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].
    4. 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.
    5. 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.

    1. 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.
    2. 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

    1. 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 ;
    2. "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.

    3. 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:
    4. 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.

    1. 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:
    2. 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.

    1. 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.
    2. The Applicants unsuccessfully raised this as an issue during the final Appeal.

    (i) The interim appeal to the Court of Appeal in relation to the Nutrition meaning.

    1. The Plaintiffs original Statement of Claim alleged in relation to nutrition, that the meaning of the leaflet was that McDonald’s;
    2. "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".

    1. On 15th December 1993, McDonald’s served a formal notice of Admission of the following fact;
    2. "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."

    1. 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;
    2. 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."

    1. 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:
    2. "… 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

    3. The Applicants appealed against his order by Notice of Appeal dated 12 February 1996. The grounds of appeal were expressed in 7 paragraphs.
    4. The appeal was heard by the Court of Appeal (presided over by Hirst LJ) on 2 April 1996. By letter dated 1st 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.
    5. 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.
    6. 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".
    7. 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.

    1. 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.
    2. Bell J found that;
    3. 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

    4. 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:
    1. most of the meanings found by Bell J were hard to reconcile with the words published;
    2. Bell J took little or no account of the nature of the leaflet complained of; in particular, the fact that the leaflet was a campaigning document. Inasmuch as he did, it was to characterise and influence his view of the meanings complained of in a more defamatory light.;
    3. Bell J’s findings reflect an over-strict approach to meanings in domestic law;
    4. Bell J’s findings would have been more favourable to the applicants had they had the benefit of legal advice, assistance and representation.

    (k) The breadth of issues.

    1. 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.
    2. 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.

    1. Bell J summarised his main findings on McDonald’s claims as follows:
    2. "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

    (m) The Issues - what was proven for each issue

    1. These main findings have to be put into proper context. There were, inevitably, numerous detailed findings under each main issue. And, the Applicants submit:
    1. These detailed findings demonstrate that there was, in truth, a reasonable foundation for all of the allegations complained about by McDonalds in relation to the leaflet: this is crucial to the Applicants' Article 10 argument on the burden of proof.
    2. Because Bell J adopted a wrong approach to meanings generally, in most instances the main findings did not reflect the detailed findings set out below.
    3. In any event, the Applicants say, the main findings fail properly to reflect the detailed findings of fact.
    1. 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].
    2. 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

    1. 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:

    1. 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.)
    2. Consequently there is displacement of subsistance farmers. (Extract nos: 4-9, 32, 34-7, 43, 59, 60, 63, 69, 71, 72, 77-80)
    3. 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)
    4. 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

    1. 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:

    1. 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)
    2. McDonald's is probably the world's largest user [see nos 85 & 86] and promoter of beef products (This was not contested).
    3. 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)
    4. McDonald's uses beef reared in countries with tropical forest clearances, (Almost all extracts).
    5. McDonald’s has used beef from regions in which cattle ranching has caused the displacement of small farmers and indigenous people. (Extract nos: 4-9, 32, 34-7, 47-9, 59, 60, 63-66, 69, 72, 74, 77)
    6. McDonald's substantial usage of beef in poor countries (and some exported beef too for McDonald's use, 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: 10, 27, 46)

    Packaging, Recycling And Waste

    1. 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 90, 91, 93-103, 104, 109, 112.

    The applicants submit that it was clearly established and proven:

    1. McDonald’s only use a small proportion of recycled fibre in their packaging (Extract nos: 90-92). [When this is closely analysed with reference to other extracts, its clear that the true percentage of genuinely post-consumer recycled fibre is tiny : [See Bell J p185, chart showing post-consumer waste recycled volume per store only an eighth of total recycled volume in 1990].
    2. McDonald’s does not recycle any customer packaging. (Extract nos: 94, 101, 102)
    3. McDonald’s has used deceptive promotions to give a false impression of commitment to recycling. (Extract nos: 93-103)
    4. A great deal of McDonald’s packaging ends up as litter. (Extract nos: 104, 109, 112).

    Nutrition

    1. 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 114, 118, 120-124, 126-130, 133-7, 141

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

    1. McDonald’s deceptively promote their food as a useful and nutritious part of any diet. (Extract nos: 137, 141)
    2. McDonald’s food is high in fat, salt, and animal products, and low in fibre [at the relevant times]. (Extract nos: 114, 141)
    3. A diet of this kind is linked by a substantial body of medical and scientific opinion to cancer of the breast and bowel and heart disease. (Extract nos: 122-3, 126, 128, 130 - and see CoA p188-193)
    4. People who eat several McDonald’s meals a week are likely to make their diet high in fat (including saturated fat) and salt, and low in fibre. (Extract nos: 120)
    5. - ‘In my judgment a diet high in fat (including saturated fat) and animal products, and Low in fibre, sustained over very many years, probably does lead to a very real, that is serious, risk of heart disease in due course’. And that McDonald’s customers who eat there several times a week ‘take the very real risk of of heart disease if they continue to do so throughout their lives, encouraged by the Plaintiffs’ advertising.’ (Extract nos: 122-3)
    6. The Court of Appeal further ruled that: 'If one eats enough McDonald's food, one's diet may well become high in fat etc., with the very real risk of heart disease.' [CoA p258F]

    Advertising

    1. SECTION PROVEN OVERALL: "The sting of the leaflet to the effect that the Plaintiffs exploit children by using them, as more susceptible subjects of advertising, to pressurise their parents into going to McDonald's is justified. It is true" [Bell J p399 para 7]

    ANIMALS

    1. SECTION PROVEN OVERALL: "The sting of this part of the leaflet to the effect that the First and Second Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food is justified, true in substance and in fact." [Bell J p468 para 3]

    Food Safety

    1. 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: 197-8, 200-3, 207, 213-218, 224, 226-231.

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

    1. Meat for human consumption is prone to carry pathogenic organisms [Extract nos 197, 207]
    2. Poor slaughterhouse and boning room practices (including at those supplying McDonald’s) increase the risk of contamination [Extract nos 198], and are a matter of serious concern [Extract nos 203].
    3. The mincing of meat for burgers etc spreads food poisoning organisms throughout a batch. [Extract nos 200]
    4. McDonald’s suppliers magnify the spread of contamination [Extract nos 207]
    5. McDonald’s have been responsible for food poisoning incidents, including serious outbreaks which McDonald’s refused to accept liability for [Extract nos 201-202, 217-218].
    6. McDonald’s UK customers have been served undercooked meat products for which they have been prosecuted [Extract nos 213], and there must be many more incidents [214], including in the USA [224] mostly because of pressure to produce large quantities of meat quickly at busy times. [215]. ‘The risk of this is endemic in the fast food system’.[Extract nos 216, 224]
    7. Some routine practices used in the rearing, slaughter and processing of meat can result in damage to the health of those on a meat-based diet. This includes pesticide residues [226,231], antibiotics and growth promotors [Extract nos 227, 228, 229, 230]

    Employment

    1. The Applicants rely on the extracts in the Findings and Sub-Findings of Fact From Justice Bell’s Judgement [See Appx 16].

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

    1. It is fair comment to say McDonald’s employees worldwide do badly in terms of pay and conditions [See CoA p234B and p241A]
    2. McDonald’s have an active anti-union policy and practice. Their employee contract discriminates against staff rights to engage in union activities, including getting rid of pro-union workers. (Extract nos: 339-40, 396, 398-400, 403, 409, 413, 418-425, 428, 431-439, 442-485, 511)

    Summary of findings

    1. Overall, for the reasons set out below, the applicants submit that the main findings of Bell J reflect:
    1. the fact that the burden of proof was (wrongly and in breach of Article 10 of the Convention) on the applicants to prove the truth of each and every matter determined by Bell J to be a matter of fact; this was an impossible burden for two unwaged and unassisted individuals facing the longest and most complex case in legal history and led directly to the findings of Bell J;
    2. the main findings were conditioned by Bell J.’s approach to the meanings, including the distinction between fact and comment; by treating comment as fact, Bell J made the applicant’s task in defending the claim brought against them almost impossible;
    3. in any event, Bell J’s main findings did not reflect the sub-findings or indeed the tenor of the evidence adduced at trial.

    Each of these points is developed below in the submissions on Article 10.

    (m) Publication

    1. In relation to the issue of publication, the Judge found that Ms Steel was liable for publication of the leaflet between early 1988 and 20th September 1990, and Mr Morris was liable for all publications between 21st September 1987 and 20th September 1990 and that he participated in the production of the leaflet complained of in 1986, although the precise part which he played in its production could not be identified. Liability for publication was predominantly on the basis of involvement in London Greenpeace and/or the anti-McDonald’s campaign, and the applicants deal with this in their submission under Article 11 later. The Court of Appeal did not overturn these findings.

    (n) Counterclaim.

    1. In relation to the Applicants’ counterclaim the judge held that the sting of the words complained of in the material published by McDonald’s was that the Applicants had published a leaflet which they knew to be untrue and that they had tried to avoid responsibility for it [note that the applicants did not accept that ‘trying to avoid responsibility’ was the real meaning]. He held that the charges of lying in the leaflet, and trying to avoid responsibility for it, were clearly defamatory. The judge held that it was true that the Applicants had wrongly denied responsibility for the leaflet. But he held that the charges that the appellants had told lies in the leaflet were not justified, since McDonald’s did not establish that the Applicants knew that the contents of the leaflet were untrue. He held however that the relevant publications were made on occasions of qualified privilege as the Plaintiffs, he ruled, were acting to defend themselves from attack from statements made by the defendants (an argument vigorously resisted by the defendants) which was not vitiated by express malice. Accordingly he held that the counterclaim failed.10 It may be felt this protection for McDonald’s freedom of expression reflects double standards.

    (o) Damages.

    1. From the date upon which the writ was issued, until damages were finally resolved, the applicants were exposed to a claim running into hundreds of thousands of pounds. Bell J stated that his starting point, had none of the allegations been proved, was £50,000 per claimant. And the Court of Appeal considered this figure to be ‘relatively modest’.11
    2. In the event Bell J awarded McDonald’s US £30,000 and McDonald’s UK £30,000 as set out above.

    (p) Costs.

    1. The basic rule in English law is that the losing party to litigation pays its own costs and the costs of the successful party. Libel trials are notoriously expensive. It is estimated that McDonald’s trial costs were substantial, and could even have been as high as £10 million, including over £6,500 per day of trial for their lawyers.12
    2. This is a significant figure. The applicants invite the European Court of Human Rights to approach this figure on the basis that this was a sum that McDonalds genuinely considered that it needed to spend to properly bring libel proceedings and to defend itself against the applicants’ counter-claim. In such circumstances, it is submitted, any suggestion that there was, or could realistically have been, equality of arms between the applicants and McDonalds is absurd – as would any suggestion that the applicants could adequately defend themselves without resources.
    3. Although at the conclusion of the trial McDonald’s did not ask for an order for their costs they had included a claim for costs in the originating writ, and so the Applicants were always at risk of such an order. The risk of being liable to pay a claimant’s costs has a powerful chilling effect on freedom of expression in England. Of the 5 individuals originally sued by McDonald’s, 3 were forced to apologise for the content of the leaflet as they could not face a long and costly court case. [See Appendix 18].

    (q) The Court of Appeal.

    1. The Applicants’ appeal to the Court of Appeal lasted 23 days. It was preceded by a number of pre-trial hearings/applications, and by an Order, vigorously resisted by the Applicants, who unsuccessfully petitioned the House of Lords for leave to appeal on this, that all submissions must be put in writing before the Appeal hearing started.
    2. At the full appeal to the Court of Appeal, the Applicants contended that on the issue of nutrition the words complained of, in their natural and ordinary meaning, did "not mean that McDonald’s food cause cancer and heart disease as a surely established fact, but that there is a respectable (not cranky) body of medical opinion which links a junk food diet with a risk of cancer and heart disease. Changes in medical opinion over the years are such that there can be no final medical fact and the words "accepted medical fact" include views expressed in responsible medical opinions which were not merely cranky theory. The appellants’ case on the facts then was that this link was accepted both in literature published by McDonald’s themselves and by one or more of McDonald’s own experts and in medical publications of high repute. That should have been the end of this part of the case which, say the appellants, should not have been extended evidentially in that way that it was" (CoA transcript of judgment, p.164B-D).
    3. The Court of Appeal said it had "considerable sympathy with these submissions, given the wide range of medical opinions" to which it had been referred (ibid, p.164D). This included the views of the World Health Organisation – outlined below.
    4. However, the Court of Appeal stated that the issues about the meaning of this part of the leaflet (nutrition) which the Applicants wished to raise on appeal were substantially the same as the issues raised in their 1996 grounds of appeal which they withdrew (see below). The Court of Appeal held that it was bound by the court’s previous indistinguishable decision and the circumstances in which the earlier appeal was made did not permit the Court of Appeal to consider the withdrawn grounds even though they were not in the event argued before the Court of Appeal in 1996.13
    5. The Court of Appeal stated that:
    6. "The judge’s findings, in our judgment, went some way to justifying for cancer of the breast and bowel the defamatory meaning upheld by the Court of Appeal. "Very real risk" was not established. A possibly increased risk was established for breast cancer and a strongly possibly increased risk for cancer of the bowel. For cancer of the bowel, the appellants submit that "strongly possible" should be enough to justify the publication, especially in a scientific area such as this. … On questions whether particular kinds of food cause cancer, there is a substantial difference between a possibility, even a strong one, that they may and a very real risk that they do. The "very real risk" sting was not justified. Accordingly the defence of justification for the cancer part of the defamatory meaning should fail …"14

    7. The applicants had made it clear during the trial (both before and after the interim appeal to the Court of Appeal, that they strenuously challenged the Plaintiffs’ meaning, and the Judge’s meaning.
    8. It is submitted that had the Applicants been represented, the six grounds withdrawn prior to the hearing of the appeal by the Court of Appeal on Bell J’s ruling on meaning of 20 November 1995 would not have been withdrawn. It is highly likely that the Court of Appeal in April 1996 would have held, as it is clear that the Court of Appeal in January 1999 would have done had it not ruled that it was not permitted to consider the issue, that the words complained of did not mean that there was a "very real risk" of cancer of the breast and bowel but that there was a ‘possibly increased risk’ of breast cancer and cancer of the bowel.
    9. In those circumstances the Applicants’ defence of justification as to the link between McDonald’s food and cancer of the breast and bowel would have succeeded.
    10. This is a point of considerable importance because it provides one of a number of examples where the arguments of McDonalds were preferred to those of the applicants, not because they were right, but because, by reason of inexperience and the sheer overwhelming nature of the case, the unrepresented applicants were unable to advance the points that they wished to make as powerfully as they would have liked, or in some cases, at all.
    11. In fact the Court of Appeal in 1999 overturned Justice Bell's later qualification and ‘clarification’ of the meaning which they ruled had been established at the Appeal Court hearing part way through the trial, on the grounds that, although his meaning may have benefitted from clarification, he was not open to amend it as he was bound by the previous Court of Appeal Judgment in 1996 on the meaning, as indeed the Court of Appeal itself was in 1999.
    12. In summary, overall the Court of Appeal held, amongst other things, that:
    13. "We agree with the judge that certain charges have not been shown to be justified. These are: that the respondents [McDonald’s] (or either of them) have been to blame for starvation in the Third World; that they have bought vast tracts of land in poor countries and caused the eviction of small farmers from their land; that they have been guilty of the destruction of rainforest, directly or indirectly, thereby causing wanton damage to the environment; that they have used lethal poisons to destroy vast areas of rainforest and forced tribal people there off their ancestral territories; that either of them has lied when it has claimed to have used recycled paper; that they sell food which, as they must know, exposes their customers to a serious risk of food poisoning; and that they have a policy of preventing unionisation by getting rid of pro-union workers. We have not arrived at the same conclusion as the judge on some other matters, under the general headings of nutrition and employment pay and conditions.

      "On the topic of nutrition, the allegation that eating McDonald’s food would lead to a very real risk of cancer of the breast and of the bowel was not proved. On pay and conditions we have found that the defamatory allegations in the leaflet were comment."

      "In addition to the charges found to be true by the judge – the exploiting of children by advertising, the pretence by the respondents that their food had a positive nutritional benefit, and McDonald’s responsibility for cruel practices in the rearing and slaughtering of some of the animals used for their products – the further allegation that, if one eats enough McDonald’s food, one’s diet may well become high in fat, etc., with the very real risk of heart disease, was justified. …".15

    14. They went on to add that this last finding ‘must have a serious effect on their trading reputation since it goes to the very business in which they are engaged. In our judgment, it must have a greater impact on McDonald’s reputation than any other of the charges that the trial judge had found to be true.’ [CoA p258F].
    15. They also ruled that it was ‘fair comment to say that McDonald’s employees worldwide ‘do badly in terms of pay and conditions’ [See CoA p234B, and p241A].

    III: DOMESTIC LAW AND PRACTICE

    1. It is well established that English libel law is amongst the strictest in the world. The presumption of falsity according to which defendants must prove the truth any allegation of fact is highly restrictive, so much so that claimants/plaintiffs frequently choose to sue in England rather than in any other jurisdiction because their chances of success are so much higher under English libel law (so called forum shopping). Moreover, the domestic authorities have never had to determine the extent to which English libel law corresponds with the requirements of the European Convention on Human Rights because, until the Human Rights Act 1998 was passed (after the Applicants' case was finished), there was no obligation that the domestic authorities act compatibly with the Convention.

    (a) Libel proceedings.

    1. Under English law the actions of libel and slander are private legal remedies, the object of which is to vindicate the claimant’s reputation and make reparation for the injury done by the wrongful publication to a third person or persons of defamatory statements concerning the claimant.
    2. A strict liability rule applies to the tort of libel:
    3. "A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention".16

    1. The law presumes in the claimant’s favour that the words are false, unless and until the defendant proves the contrary. If the defendant attempts unsuccessfully to prove that the words are true, this is likely to increase the damages.17
    2. Once the claimant has proved (a) publication to a third party; (b) reference; and (c) defamatory meaning the tort is complete. Damage is presumed. The claimant (whether an individual or a corporation) is not required to show any actual damage to reputation.18
    3. The claimant is not required to prove that the allegations are false or that s/he is of good reputation. The claimant is not even required to state on oath that the allegations are untrue. The Applicants comment that either of these strictures would provide some protection for defendants, and hence for protection of freedom of speech.
    4. It is generally accepted that libel proceedings are amongst the most complex and costly types of civil litigation in English law. Libel claims must be issued in the High Court. In 1966 Diplock LJ observed:
    5. "This is an ordinary simple case of libel. It took fifteen days to try, the summing-up lasted for a day; the jury returned thirteen special verdicts. The notice of appeal sets out seven separate grounds why the appeal should be allowed and ten more why a new trial should be granted, the latter being split up into over forty sub-grounds. The respondent’s notice contained fifteen separate grounds. The costs must be enormous. Lawyers should be ashamed that they have allowed the law of defamation to have become bogged down in such a mass of technicalities that this should be possible".19

    6. The Applicants invite the court to compare the above with the substantially greater burden resulting from the current case.

    (b) Limitation period

    1. The limitation period for defamation proceedings when McDonalds issued proceedings against the Applicants was 3 years. This was reduced to 1 year by the Defamation Act 1996 on the basis that since the main purpose of defamation proceedings is to repair damage to reputation, they should be concluded speedily. It is against this background that the Applicants complain that McDonalds was allowed to amend its case very late in the proceedings to include allegation of defamation which, they claimed, had taken place over 7-9 years before trial.

    (c) Publication.

    1. It is for the claimant/plaintiff in defamation proceedings to prove that the defendant published or participated in the publication of a defamatory statement. Each communication is deemed to be a separate tort (Duke of Brunswick v Harmer (1849) 14 QB 185). And publication can be by any means, including merely handing out a leaflet or document as in the Applicants' case.

    (d) Meanings

    1. In most defamation actions the court (normally a jury) will only be concerned with the natural or ordinary meaning of the words complained of. This is the meaning that an ordinary, reasonable person would derive from the words, without any special knowledge beyond that which is known to ordinary people generally. However, the natural and ordinary meaning can include innuendo, i.e. something that is not stated directly and literally (see, e.g. Prager v Times Newspapers Limited [1988] 1 WLR 77).
    2. There is no rule in English libel law that gives speech special protection. Unlike the position in other countries such as the United States, there is no rule that a court should choose an interpretation of challenged statements that will result in protection of free expression if such interpretation is possible (the so called "innocent construction" rule): see further below.

    (e) Burden of proof.

    1. In English law a defamatory allegation is presumed to be false until the contrary is shown. A defendant is required to prove that the allegation is true in substance and in fact: Belt v. Lawes (1882) 51 LJQB 359 at 361, per Field J:
    2. "… a libel prima facie imports a wrong, which it could not do if the alleged libellous matter were true, and therefore the onus of proving the proving the truth thereof is cast on the defendant."

      (f) Status of multi-national corporations.

    1. Although in English law government and local authorities may not maintain an action for libel: Derbyshire County Council v. Times Newspapers [1993] AC 534, the same does not apply to multinational corporations. Despite their enormous power and influence, and lack of accountability, they enjoy the full protection of libel laws.

    (g) Defences.

    1. In English law there is no defence of reasonable belief.20 The three principal defences are (a) justification; (b) privilege; and (c) fair comment.

    a. Justification

    1. The defendant is required to prove that the defamatory imputation (as found by the judge or jury) contained in the words complained of is true in substance and in fact. The burden is on the defendant. The standard is the balance of probabilities, although the more serious the allegation the more credible the evidence must be to prove it.
    2. The repetition rule requires a defendant to prove the truth of the allegation. The defendant cannot simply prove that s/he was merely repeating what s/he had been told by someone else or had an honest or reasonable belief in the truth or fair comment of the allegations.

    b. Privilege

    1. In English law no privilege attaches to a statement on a matter of public interest believed by the publisher to be true in relation to which he had exercised reasonable care: Blackshaw v. Lord [1984] 1 QB 1 at 26.
    2. The nature and extent of the defence of qualified privilege (particularly in relation to the application of that defence to the media) was considered in the case of Reynolds v. Times Newspapers Ltd.21, by the Court of Appeal after the trial of the Applicants’ case but before their appeal was heard by the Court of Appeal.
    3. Since the decision of the Court of Appeal in the Applicants’ case, the House of Lords has delivered judgment in the case of Reynolds22.
    4. It held that the defence of qualified privilege is available where (a) the publisher was under a legal, moral or social duty to those to whom the material was published (which can include the general public) to publish the material in question; and (b) those to whom the material was published had an interest to receive the material.
    5. When determining whether the defence of qualified privilege applies the court will take into account all relevant circumstances, including: the seriousnes of the allegaton; the nature of the information and the extent to which the subject matter is a matter of public concern; the source of the information; the urgency of the matter; whether comment was sought from the claimant; whether the article contained the gist of the claimant’s side of the story; the tone of the article; the circumstances of the publication, including its timing.
    6. The applicants comment that these guidelines and the balance excercise to be undertaken are unclear, can be interpreted in many different ways, are a particularly unfair burden on members of the public, especially those not authors of a document they may wish to distribute, and leave a disproportionate and unpredictable power in the hands of individual judges or juries
    7. In any event, the Applicants submit that the 'circumstantial test' must be demonstrated to work, to protect freedom of speech, in practice. Yet its inadequacy was demonstrated by the Court of Appeal in the current case - despite the circumstances including matters of the highest public interest and ongoing public debate, the words complained of being in the public domain already including from authoritative sources (See Public Domain, below), McDonald's having also consented to their continued distribution, the fact that McDonald's distributed 300,000 leaflets directly countering the allegations and calling the defendants liars (which the courts found was untrue but protected by qualified priviledge), the ability of the company to promote and protect its image and reputation by its advertising and marketing, and substantial findings and sub-findings of fact being made against them on each and every issue (including, highly significantly, against their deceptive and exploitative marketing practices - which must put into question the quality of their pre-existing reputation).
    8. The Applicants submit that in the light of this, the domestic courts' qualified privilege protection for freedom of speech is in reality not effective.
    9. The arguments above also raise the questions of proportionality.

    c. Fair comment

    1. English law recognises a defence of fair comment. The defamatory imputation must, however, be comment and not an assertion of fact. Further, there must be a substratum of facts in the words complained of, or in common knowledge, on which the comment is based. A defendant is required to prove the truth of those sub-facts. The distinction between statements of fact and comment is often difficult to draw. There is very little authority in which the courts have given clear guidance as to the distinction.
    (h) Legal aid
    1. By statute, legal aid is not available to parties to defamation proceedings (Schedule 2, Part II, Legal Aid Act 1988). Impecunious defendants are therefore not eligible to receive public funding no matter how important or complicated the case is. There is also no provision for simplifying procedures to ensure effective access or equality of arms.
    2. In 1975, the Report of the Committee on Defamation23 ("the Faulks Report") considered the availability of legal aid in defamation actions. It stated:
    3. "579. Defamation is now the only cause of action in which legal aid is excluded. We regard this exclusion as anomalous. We think that Legal Aid Committees would be well able, with all their experience, to differentiate between the meritorious and unmeritorious complaints …"

    4. The Committee recommended that legal aid under the legal aid statute should be extended to persons in connection with actions in respect of defamation. However, this has never been implemented.

    IV STATEMENT OF ALLEGED VIOLATION(S) OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS.

    A: VIOLATION OF ARTICLE 10.

    1. Article 10 provides, in so far as relevant:
    2. 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

      2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".

    General principles.

    1. The Court’s jurisprudence establishes that:
    2. freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no ‘democratic society’. This freedom is subject to the exceptions set out in Article 10(2), which must, however, be construed strictly. The need for any restrictions must be established convincingly.

      The test of "necessity in a democratic society" requires the Court to determine whether the "interference" complained of corresponded to a "pressing social need", whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient … In assessing whether such a "need" exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 …

      The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest … journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation … In cases such as the present one, the national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of "public watchdog" by imparting information of serious public concern …".24

    3. The Applicants note that the Court of Appeal Judgment in the current case rightly accepted that there is no reason to debar campaigning groups from having any protection afforded to the established media.
    4. The extent of the Court’s supervisory jurisdiction is important:
    5. The Court’s task in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was "proportionate to the legitimate aim pursued" and quot;relevant and sufficient" …. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts.25

      Such a margin of appreciation is particularly essential in commercial matters, especially in an area as complex and fluctuating as that of unfair competition … It is however necessary to reduce the extent of the margin of appreciation when what is at stake is not a given individual’s purely "commercial" statements, but his participation in a debate affecting the general interest, for example, over public health; in the instant case, it cannot be denied that such a debate existed. It concerned the effects of microwaves on human health (indeed, the only issue was over the conclusions reached by Mr Hertel in his research ….) …".26

    6. The Applicants contend that their case has many parallels with the above points, and further, as the document complained of criticises the fast food industry as a whole, this further serves to reduce any ‘margin of appreciation’.
    7. ‘Proportionality’ implies that the pursuit of the aims mentioned in article 10(2) has to be weighed against the value of open discussion of topics of public concern. When striking a fair balance between these interests, the Court cannot overlook the great importance of not discouraging members of the public, for fear of criminal or other sanctions, from voicing their opinions on issues of public concern.27
    8. Politicians and necessarily organisations which have an impact on matters of public significance and debate must display a greater degree of tolerance of criticism than a private individual:
    9. Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.

      The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others – that is to say, of all individuals – to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion about political issues".28

    10. The applicants submit the same principles should apply to huge multinationals such as McDonald’s whose practices equally have a profound impact on matters of public significance and debate. Political debate is not limited to the activities or policies of a governmental body, and should equally apply to the activities, policies and influence of an organisation like the McDonald’s Corporation, which as Bell J acknowledged is a gigantic enterprise with immense economic strength. Moreover, like other multinationals it chooses to promote itself in the public domain by extensive advertising.
    11. Regard must be had to the background against which the leaflets were written/distributed.29 This is particularly important in the applicants’ case where the leaflet complained of was a campaigning document, forming part of an ongoing public discussion on matters of public importance.
    12. The wide limits of acceptable criticism in political discussion also apply to other matters of public concern.30
    13. In Prager and Oberschlick v. Austria, the European Court was "mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation".31
    14. The Applicants contend that the domestic courts failed to consider any possible recourse to exaggeration or provocation, and indeed penalised the Applicants for this – for example the cartoon of the cow and person in a hamburger bun was used to increase the severity of the meaning in relation to the nutrition section; the significant findings that McDonald’s use of recycled paper was ‘small’ but not ‘tiny’, and that proving the ‘getting rid of’ union activists would not be capable of justification for ‘sacking’ union activists.
    15. In Bladet Tromso and Stensaas v. Norway,32 the applicants, a newspaper and its editor, complained of violations of their rights under article 10 of the European Convention after defamation proceedings were brought against them. The European Court made the following observations of importance:
    16. As to the sufficiency of those reasons for the purposes of Article 10 of the Convention, the Court must take account of the overall background against which the statements in question were made. Thus, the contents of the impugned articles cannot be looked at in isolation of the controversy that seal hunting represented at the time in Norway and in Tromso, the centre of the Trade in Norway. It should further be recalled that Article 10 is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Moreover, whilst the mass media must not overstep the bounds imposed in the interests of the protection of the reputation of private individuals, it is incumbent on them to impart information and ideas concerning matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Consequently, in order to determine whether the interference was based on sufficient reasons which rendered it "necessary", regard must be had to the public-interest aspect of the case.

    17. The Applicants submit that all the issues in the current case clearly fall into that category and that the domestic courts failed to apply, or to properly apply, this test.
    18. In Bladet, the Court continued;
    19. "In the Court’s view, however, the manner of reporting in question should not be considered solely by reference to the disputed articles in Bladet Tromso on 15 and 20 July 1988 but in the wider context of the newspaper’s coverage of the seal hunting issue. …

      … The impugned articles were part of an ongoing debate of evidence concern to the local, national and international public, in which the views of a wide selection of interested actors were reported.

      The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authorities are capable of discouraging the participation of the press in debates over matters of legitimate public concern.

    1. This is particularly important in the applicants case where it is submitted the approach of the domestic authorities is likely to have a profound effect on the willingness and ability of ordinary members of the public to participate in debates on matters of legitimate public concern.
    2. Returning to Bladet;
    3. "…By reason of the "duties and responsibilities" inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.

      … In the view of the Court, the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the contents of official reports without having to undertake independent research. Otherwise, the vital public-watchdog role of the press may be undermined.

    1. The Applicants contend that the aforementioned World Health Organisation Report: Diet, Nutrition and the Prevention of Chronic Diseases, which concludes that there is a causal link between diet and cancer, is one such official report.
    2. Returning to Bladet;
    3. On the facts of the present case, the Court cannot find that the crew members’ undoubted interest in protecting their reputation was sufficient to outweigh the vital public interest in ensuring an informed public debate over a matter of local and national as well as international interest. In short, the reasons relied on by the respondent State, although relevant, are not sufficient to show that the interference complained of was "necessary in a democratic society". Notwithstanding the national authorities’ margin of appreciation, the Court considers that there was no reasonable relationship of proportionality between the restrictions placed on the applicants’ right to freedom of expression and the legitimate aim pursued. Accordingly, the Court holds that there has been a violation of Article 10 of the Convention".

    4. The Applicants submit that the burden must be on the state authorities to ‘show that the interference complained of was "necessary in a democratic society".’ They submit that the domestic courts failed to impose this burden.
    5. Crucial to the Court’s approach to Article 10 is the principle that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof.33
    6. Where an individual is merely reporting what was being said by others, in so far as that person is required to establish the truth of those reported statements he or she is faced with an unreasonable, if not impossible, task.34 These principles were simply not observed in the applicants case.

    SUBMISSIONS ON ARTICLE 10

    1. The Applicants submit that the failure of domestic law adequately to protect their right to freedom of expression breached Article 10 of the Convention in each and all of the following respects:
    1. the requirement in domestic law that the applicants prove the truth of each and every assertion deemed to be fact by the trial judge contravenes the principle of free speech articulated in the Court’s case law under Article 10 of the Convention; it cannot be justified as a necessary nor a proportionate response to the need to protect the reputation of a multinational such as McDonalds;
    2. the extent to which domestic law protects the reputation of multinationals such as McDonalds is not legitimate, and its effect is to restrict free speech to an extent that cannot be justified as necessary and proportionate;
    3. the matters complained of by McDonalds were not new, and they were already in the public domain and/or were being published to McDonald’s knowledge and with McDonald’s actual or implied consent; for the domestic courts to enter judgment against the applicants and award damages to McDonalds in such circumstances cannot be justified under Article 10 of the Convention;
    4. the distinction in domestic law between fact and comment, and the particular findings of the trial judge in the applicant’s case, are over-strict and, coupled with the burden of proving the truth of all factual assertions made impossible the applicants’ task in defending the claim brought against them by McDonalds;
    5. the approach of the trial judge to the meanings of the words in the pamphlet complained of was incompatible with Article 10 of the Convention because the meanings were strained, some to the point of absurdity and did not relate appropriately to the evidence adduced at trial;
    6. the courts did not rely on an acceptable assessment of the relevant facts as required by Hertel;
    7. the damages awarded were excessive and bore no relationship to the means of the applicants.

    Each of these submissions will now be developed in turn.

    (a) Burden of proof

    1. The applicants contend that the inflexible rule in domestic law which requires that they prove the truth of any statements of fact contained in the leaflet and alleged by McDonalds to be untrue violates their rights under Article 10. This raises an important and complex issue, which, to the applicants’ knowledge has yet to be considered by the European Court of Human Rights.
    2. The issue is whether the domestic law of defamation in England and Wales strikes the right balance between the free speech rights of campaigners and the trading reputation of powerful corporations, whose practices they seek to criticise.
    3. The applicants contend that it does not because it leaves out of account:
    1. the public interest
    2. mode of publication
    3. the ease of proof
    4. the means of the parties
    5. the reasonableness of any belief in the truth of the words complained of
    6. the nature of the statements complained about
    1. Each of these will be developed in turn;

    (i) The public interest

    1. The Court of Appeal in the applicants’ case described McDonalds as ‘a gigantic enterprise with immense economic strength’ (CA p.17) and, it is submitted, public discussion of the practices of such enterprises is an essential characteristic of an effective democracy. Plurality dictates that there should be room for strong criticism of such enterprises within any such discussion.

    (ii) The mode of publication.

    1. It has never been contended that the applicants in this case were the authors of the leaflet complained of by McDonalds; it was researched and written by others. The applicants’ were sued in defamation because McDonalds alleged that they supported a campaign which included, as one of its activities, distribution of the leaflet in question and because McDonalds alleged that they had, on occasion, handed out the leaflet themselves. Requiring individuals in the position of the applicants to prove as true any assertion made in a campaigning leaflet merely because they supported the campaign in general and/or because they may, on occasion, have handed out the leaflet to members of the public has an obvious chilling effect on campaigning activities. In reality, very few campaigners on matters of public concern are in a position to prove the truth of every assertion made in the course of a campaign, whether in a leaflet or otherwise, and the effect of the ruling in the applicants’ case is to stifle legitimate debate and strangle ideas which powerful corporations find distasteful.

    (iii) The ease of proof

    1. In the applicants’ case on tropical forests, much of the evidence turned on McDonalds’ practices and policies in Central America and, in particular, the extent to which (if at all) they were responsible for environmental damage, including destruction of rainforests and the displacement of indigenous people. Although McDonalds were uniquely well-placed to put evidence of their practices and policies before the court, the domestic law of defamation required the applicants’ to establish the truth of every fact asserted in the leaflet with which they were associated. This was an unduly heavy burden, inimical to free speech.
    2. Further, the 1st Plaintiff is an international organisation, and the issues raised were global in scope and effect. For example the key point not established on employment related to international trade union issues. McDonald’s chose to rely on witnesses from many countries (see list) on this (and other issues), yet there is no power to order discovery or subpoena from abroad. This adds to the unfairness of the burden of proof on the defendants alone.
    3. Regarding nutrition, the requirement that the Applicants prove the truth of statements re diet and disease was also unfair, particularly when similar statements have already been made in a broad range of medical journals, for example;
    1. The World Health Organisation report 'Diet, Nutrition and the Prevention of Chronic Diseases' [WHO,1990], p157, states: 'Dietary factors are now known [our emphasis] to influence the development of a wide range of chronic diseases, eg coronary heart disease, various cancers, hypertension, cerebrovascular disease, and diabetes.' It goes on to add that the diet in question is 'energy dense' characteristically involving 'a high intake of fat (especially saturated fats)' and low in fibre. [Appx 19]
    2. McDonald's Restaurants Ltd own pamphlet: 'Good Food, Nutrition and McDonald's' issued October 1984. On page 12 it states: 'There is a considerable amount of evidence to suggest that many of the diseases which are more common in the western, affluent world - disease such as obesity, diabetes, high blood pressure, heart disease, stroke and some forms of cancer - are related to diet. The typical western diet is relatively low in dietary fibre (roughage) and high in fat salt and sugar. .... It is important to remember that although diet is an important contributory factor to these diseases [our emphasis], it is not the only one.' [See Appx 20] The applicants note that when US McDonald’s lead witness, Senior Vice President Robert Beavers was asked in the witness box to compare the previous extract with the key section of the words complained of ('..a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals... is linked with cancer of the breast and bowel and heart disease', he replied 'I cannot spot any difference' [Trial Day 4, p90 Ln51 - see Appx 21]. It is significant that McDonald’s lead witness could see no substantial difference between this company statement and the words complained of in this matter.
    1. This, it is submitted, is a clear breach of the principle in Bladet; "…. In the view of the Court, the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the contents of official reports without having to undertake independent research. Otherwise, the vital public-watchdog role of the press may be undermined."

    (iv) The means of the parties

    1. The rule in domestic defamation proceedings that the defendant prove the truth of any words complained of is applied irrespective of the means of the parties and, in particular, without regard to the position in relation to legal representation. Legal aid is not available for defamation proceedings in England and Wales and this manifestly led to acute inequalities in the applicants’ case and, in particular, inhibited their ability to establish a comprehensive defence to the proceedings.

    (v) The reasonableness of any belief in the truth of the words complained of.

    1. The applicants case was highly unusual in that, after issuing proceedings against them, McDonalds published a leaflet about the applicants, which effectively accused them of lying when they claimed that the contents of the leaflet complained of were true. The trial judge found this to be defamatory and unjustified (albeit protected by an extension of the rule relating to qualified privilege). The significance of this is that, unlike most defamation trials, there was a finding that the defendants genuinely and not unreasonably believed the truth of the assertions they sought to defend.
    2. The significance of this for campaigners is profound. If they are vulnerable to a claim in damages in relation to the publication of information which they genuinely and not unreasonably believe to be true, but which they cannot prove to be true, many will simply not involve themselves in campaigns and protests. `
    3. The applicants submit that, in a defamation action, the appropriate test to be applied by courts should be whether the defendant held a genuine and not unreasonable belief in the truth and accuracy of the alleged defamatory statement. To apply a stricter test requiring the defendant to prove the justification of the statement is contrary to article 10 of the European Convention of Human Rights and international human right's standards applied by the European Court. Further, the burden of proof imposed on the applicants in this case removed their right to a fair trial and as such breached Article 6(1) of the Convention.

    (vi) The nature of the statements complained about.

    1. The applicants contend that the nature of the statements complained about is highly important. In particular to apply a strict test of proof to matters of public debate or scientific conjecture, such as the link between diet and disease, is highly inappropriate, not least because developments over time are commonplace. Even during the course of the trial before Bell J, it was claimed that scientific opinion had shifted during the course of the hearing, and, as a result, McDonalds were permitted to recall witnesses to give evidence to the effect that the evidence had become weaker on the links between diet and cancer. For that reason, it is contended, the very nature of much of the material complained about demanded a more flexible approach to the burden of proof and one that recognised the difficulties and dangers of requiring strict proof of the truth of statements on scientific and complex issues.
    2. Furthermore, notwithstanding the fact that the Judgment was for the Applicants in relation to low pay, bad conditions, advertising to children, deceptive advertising, heart disease and cruelty to animals, it is submitted that the requirement for positive proof of such matters, was inappropriate and necessitated a great deal of expense and time (both in and out of court) in preparing and adducing the necessary evidence. This added to the overall unfairness and oppressiveness of the proceedings as whole.
    3. Almost all of the issues required the calling of experts and the conducting of a scientific debate eg: nutrition, animal cruelty, definition of recycled paper and its effects, food safety/poisoning, advertising (age of children likely to be affected).
    4. The Applicants specifically place reliance on the Court’s approach in Thorgeirson v Iceland (1992) 14 EHRR 229 where the Court noted that when an individual is essentially reporting what is being said by others, a requirement that s/he establish the truth of their statements can present him/her with an unreasonable, if not impossible task. Where statements bear on matters of serious public concern, such a requirement can be inimical to open discussion and robust debate.
    5. The Applicants contend that their circumstances were comparable. The factsheet complained of consisted of a compilation of a wide range of criticisms that had previously been made by organisations, experts and individuals in their respective fields, and also by the media. The Plaintiffs’ original case was not authorship or even production of the factsheet. Neither of the Applicants were found to have authored the words complained of. It was accepted that Ms Steel had no part in the production of the factsheet, and, it is submitted, there was no credible evidence that Mr Morris played any part in its production either [See argument on Haringey Affidavit]. Inevitably anyone in the position of the applicants faces an onerous burden in proving the truth of statements made by others in such circumstances. The principal purpose of the factsheet was to raise issues of public concern and try to prevent exploitation and harm (hence the references to other fast food outlets and multinationals, and the suggested alternatives given on the final page of the factsheet [Appx 1]).
    6. Furthermore, in support of their assertion that a reasonable belief defence was appropriate and may well have succeeded, the Applicants highlight that: (a) the leaflet complained of was published in the context of a public debate which had been taken up by newspapers, NGOs and others, which included publication of the same allegations; (b) the material in the factsheet was effectively the same as material previously sanctioned by McDonalds; (c) it was reasonable for the applicants to treat the sources of information behind the material in the factsheet as reliable, particularly given the widespread public debate and discussion of the key issues, including the availability of authoritative sources for the allegations.
    7. Moreover, corporations in McDonalds' position are already offered protection by: (a) the availability of actions in malicious or injurious falsehood for malicious and scurrilous attacks; (b) actions in negligence for false statements leading to provable financial loss (see the recommendation of the Faulks Committee (Cmnd 5909) 1975, Chap 13: "for the avoidance of doubt it should be enacted that in actions for defamation at the instance of corporate bodies...the damages recoverable shall be limited to actual or probable pecuniary loss"; and (c) actions in libel by individual corporate officials who are sufficiently identified in the alleged libel.

    Contrast to position in the US

    1. The Applicants submit that it is relevant for the Court to consider the position in the US for two reasons: first because the approach taken by the Supreme Court is instructive on questions of free speech generally; second because the Ist Plaintiff, the McDonald’s Corporation is a US corporation, and the extent to which its trading reputation is protected in the US is important to an overall assessment of the fairness of the proceedings in the UK.
    2. In Vladimir Telnikoff v. Vladimir Matusevitch (1997) the Maryland Court of Appeals had to determine whether a particular English libel judgment was contrary to the public policy of Maryland so that it should be denied recognition under principles of comity.35 The court answered the question in the affirmative.
    3. The Maryland Court of Appeals observed that "American and Maryland history reflects a public policy in favor of a much broader and more protective freedom of the press than ever provided for under English law".36
    4. The US cases accept that ‘the press’ is not merely newspapers and periodicals. Similarly, the Article 10 protection of ‘the press’ as repeatedly emphasised by the European Court, does, or ought to, include leaflets and pamphlets. See Telnikoff v. Matusevitch, pp.19 and 20, fn 16; and citation of Hughesx CJ in Lovell v. Griffin, 203 U.S. 444, 452 (1938): the "liberty of the press is not confined to newspapers and periodicals," and that the "press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion".
    5. After an historical review of restrictions on the English press, the Maryland Court of Appeals considered the decision of the US Supreme Court in New York Times Co. v. Sullivan, 376 US at 279-80, which held that the First Amendment:
    6. prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not".

    1. The Maryland Court of Appeals recalled that the US Supreme Court:
    2. … went on to hold that such malice could not be presumed … that the constitutional standard requires proof having "convincing clarity" … and that evidence simply supporting a finding of negligence is insufficient …. In Curtis Publishing Co. v. Butts, 388 U.S. 130 … the Supreme Court held that the principles set forth in New York Times Co. v. Sullivan were also applicable to the defamatory criticism of "public figures

    3. The Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 … (1974), held that the "actual malice" standard of New York Times Co. v. Sullivan did not extend to defamation actions by persons who were neither public officials nor public figures. Nevertheless the Court went on to hold that, in a defamation action by such a private person against a magazine publisher who published an article relating to a matter of public concern, the First Amendment precluded the imposition of liability for compensatory damages without fault. The Court further held that, in such a defamation action, there can be no recovery of presumed or punitive damages without a showing of actual malice, defined as "knowledge of falsity or reckless disregard for the truth"."
    4. The Maryland Court of Appeals considered the "contrast between English standards governing defamation actions and the present Maryland standards" to be "striking".37 Further, the "principles governing defamation actions under English law, which were applied to Telnikoff’s libel suit, [were] so contrary to Maryland defamation law, and to the policy of freedom of the press underlying Maryland law, that Telnikoff’s judgment should be denied recognition under principles of comity".
    5. The Maryland Court of Appeals was also concerned that "recognition of English defamation judgments could well lead to wholesale circumvention of fundamental public policy in Maryland and the rest of the country" as a result of American claimants ‘forum-shopping’ and bringing defamation claims in England.38

    Conclusion on burden of proof.

    1. For all the reasons set out above, the Applicants contend that the requirement that they prove the truth of all statements of fact concerning complex matters or public interest, and the lack of a defence of ‘reasonable belief’, coupled with the blanket prohibition of legal aid, deprived them of their rights under Article 10 (and Article 6). Even if there are some circumstances in which it is appropriate to put a burden on the defendant in libel proceedings to prove the truth of any statement of alleged fact, it was inappropriate to apply that rule in the unusual circumstances of the Applicants’ case.
    2. Inflexible rules on the burden of proof and blanket prohibitions on legal aid leave no discretion to the relevant authorities to consider the merits of the individual case before them and the unfairness of their strict application. In reality these combined features, together with the very high cost of defamation litigation, mean that when threatened with libel proceedings by those with economic power, individuals and bodies back down and effectively accept the curtailment of their free speech: in the circumstances, it is submitted, any suggestion that the long list of individuals and bodies who backed down when threatened with a libel writ from McDonalds did so because they were wrong and McDonalds was right would be highly mischievous. For example the 3 other Defendants originally part of this case apologised to McDonald’s and agreed not to repeat any of the alleged libels in this case, including those which the Judge ultimately found to be true.
    3. Additionally it is clear that McDonald’s have made false claims which nonetheless have succeeded, for example Bell J [Appx 3 p465] found that;
    4. In October,1990, the Bournemouth Advertiser published an article reporting London Greenpeace's forthcoming Day of Action against McDonald's. It quoted allegations that one third of cattle subjected to the captive bolt method of stunning were not stunned but stood grievously wounded and fully conscious while the gun was reloaded. In February,1990, the Second Plaintiff's solicitors wrote a letter to the newspaper's editor, which said that McDonald's did not approve of the captive bolt method or of that or other "similarly cruel practices". This letter was clearly written on a false basis and the solicitors must have been misled by whoever gave them instructions for the Second Plaintiff, possibly on the basis that if the practice was cruel the Second Plaintiff could not be involved or seen to be involved."

    1. McDonald's also obtained other similarly unsatisfactory public apologies from other UK publishers in the 1980s - notably from the Transnational Information Centre and The Guardian Newspaper, from Greenscene magazine and from Prince Philip. [See an accurate account and useful analysis of these cases in the book 'Legal Intimidation' by Fiona Donson, lecturer in law, Cardiff University – Appx 6]. It is significant that Harriet Lamb (involved in the Transnational and Guardian cases) and Juliet Gellately (editor of Greenscene) both effectively retracted their apologies in the witness box during testimony during the Applicant’s case (See Trial transcript Day 230, pp4 and 21, and Day 49 p28 Ln23 - Appx 22). Further, the 3 additional defendants in the McDonald's vs Steel case also retracted their apologies (See their Statements - Appx 18).
    2. The applicants submit that it is wrong, unnecessary and disproportionate that domestic law enables bodies such as McDonald's to bring proceedings in libel, relying on the burden of proof resting on the defence, over material which is of public importance or interest, and/or which is already in the public domain, and/or which has been previously consented to by them, and/or can be supported by authoritative sources, and/or has been specifically and publicly denounced by them in their own publicity material. It is further disproportionate that there is no obligation on the claimant to make a declaration of the falsity of the words complained of, or any equivalent obligation which could lead to the possibility of legal sanctions at a later stage for bringing proceedings on a false basis.

    (b) The extent to which the right to a ‘reputation’ in relation to multinational and other similar bodies should outweigh free speech under Article 10.

    1. The Applicants contend that restrictions on free speech to protect reputation should distinguish between human beings and trading corporations. No such distinction was made in their case. On the contrary, damage to McDonalds’ trading reputation was presumed, even in the absence of any evidence that they lost a single burger sale as a result of the Applicants’ conduct. This, it is submitted, runs counter to the notion of free speech under Article 10 and strikes a wholly unfair balance between the right to impart and receive information and protection of reputation.
    2. In particular, it is submitted, the limits of acceptable criticism are wider with regard to businessmen actively involved in the affairs of large public companies, even more so to the companies themselves which cannot be said to have feelings, than with regard to private individuals, and such businessmen lay themselves open to close scrutiny of their acts by bodies (like Greenpeace London) acting in the public interest (see, e.g. the Court’s approach in Fayed -v- UK (1994) 18 EHRR para 75). The applicants rely on the principle in Hertel; to censor part of a debate bearing on public health and similar issues raised by the advent of fast food chains (even if the opinion expressed is a minority one) is wholly inconsistent with the notion of plurality and democracy inherent in Article 10.
    3. As stated earlier in English law government and local authorities may not, quite rightly it is submitted, maintain an action for libel.
    4. The Applicants submit that multinationals should not have a right to sue their critics for libel. It is of the highest public importance that Corporations such as McDonald's should be open to uninhibited public scrutiny and criticism, particularly on issues of public interest such as diet and health, advertising, the environment, employment conditions and animal welfare. It is widely recognised that the threat of civil actions for defamation places an undesirable fetter on the freedom to express such criticism (inc Derbyshire County Council v Times Newspapers Ltd [1992] QB 770 CA [1993] AC 534 HL). It is therefore contrary to the public interest for multinationals to have any right at common law to maintain an action for damages for defamation over such issues of public interest. This principle was extended further in the cases of British Coal Corporation v NUM (Yorkshire Area), unreported, 28 June 1996 and Goldsmith v Bhoyrul,[1997] EMLR 407,QB.
    5. The general principle of the Derbyshire case, is that it is contrary to the public interest for organs of government to be able to sue for libel. The BCC case extends that not just to elective governmental bodies but to, effectively, any organs of government, the British Coal Corporation being a kind of quango without any elective criteria whatsoever. The Goldsmith’s case extended that to a company registered as a political party.
    6. The applicants submit that such protection for freedom of expression should apply and should be applied to multinational corporations, particularly those of the nature and scope of McDonald's. Multinational corporations are often more powerful and generally have less accountability than elective bodies, and therefore it is even more compelling that they be subject to unfettered scrutiny and therefore no right to sue for libel.
    7. At the very least, the Applicants submit, in libel actions brought by corporations against their critics, bodies such as McDonalds should have an obligation to show actual damage, not only for a damages claim to succeed but also, more fundamentally, as the basis for the institution of proceedings.
    8. Corporations such as McDonalds should not have been allowed to take advantage of a rule that was introduced and has been applied to safeguard the reputation of individuals, namely the rule that in actions for libel the Plaintiffs need not prove actual loss and that loss is presumed. That is because the rationale for this rule is that a living person's reputation is incapable of quantification and that a defamatory allegation against such an individual is presumed to affect his or her whole being. In relation to individuals, damage has to be presumed because no evidence could realistically be called to prove the nature and extent of the damage to his or her character.
    9. Multinationals and/or large corporations such as McDonalds are in an entirely different position. They do not have a general reputation which is protected by the court; a trading corporation only has a "trading" reputation. In this particular case of course McDonald’s trading reputation was at least in part inflated by marketing practices found by the domestic court to be deceptive and exploitative. In any event it will be recalled, during the course of the 314 day trial, McDonalds did not adduce any evidence that they suffered any financial loss whatsoever as a result of the Applicants’ conduct. Indeed Bell J's ruling on McDonald's deceptive promotion of their food as 'nutritious', coupled with the Court of Appeal's ruling on heart disease and the 'very real risk' of eating McDonald's food must bring into question the artificiality of their reputation, at least on the central issue of the implications of their food for a nutritious and healthy diet.
    10. This has important implications because the presumption of damage in the domestic proceedings presented McDonalds with a windfall gain of £40,000 If the only loss they are capable of sustaining in law is a loss to their trading reputation, the question of whether they have in fact suffered any loss should be gauged by reference to their trade. In other words, a trading corporation that claims that its trading reputation has been damaged ought to be required to show proof of that fact.
    11. The Applicants draw to the Court’s attention that this submission is in line with the recommendation of the Faulks Report on defamation that trading and non-trading corporations alike should only be able to bring defamation proceedings if they can prove that they have suffered special damage or that the words are likely to cause them pecuniary damage. [Appx 23] (Cmnd. 5909, paragraph 342.)

    (c) Matters already in the public domain.

    1. The Applicants submit that the libel proceedings against them were also in breach of Article 10 because no account was taken of the fact that most, if not all, of the allegedly defamatory statements attributed to the Applicants were already in the public domain, and/or being published with the knowledge and consent of McDonalds, therefore the action (and damages awarded) against the applicants could not be said to be necessary or proportionate when weighed against the interference with the applicants article 10 rights.

    Veggies agreement

    1. The facts and matters contained in the leaflet complained of by McDonalds and which formed the basis of the libel proceedings and the judgment against the applicants were also published by an organisation based in Nottingham called Veggies Ltd. Veggies published a leaflet in 1987 comprising the Greenpeace London factsheet with an additional page highlighting the conditions in which cattle were slaughtered and a page of information about the work of Veggies. [See Appx 24a] It was accepted by Bell J and the Court of Appeal that the Veggies leaflet reprinted word for word the London Greenpeace factsheet which lead to the libel proceedings against the applicants.

    2. In 1987 McDonalds threatened Veggies with legal proceedings. As Bell J noted ;
    3. Veggies took legal advice. While they were doing so, Peace News published an article on the 30th October,1987, pointing out that although the leaflet had criticised working conditions at McDonald's, the "ill-effects of junk food" and the torture and murder of animals, McDonald's solicitors had only asked for a retraction of the allegations concerning destruction of the rainforest.

      On the 23rd November,1987, the First Plaintiff's solicitors wrote to Veggies. They referred to the article in Peace News and demanded that the apology and correction should be extended to cover the allegation of torture and murder of animals.39

    4. As a result, Veggies made minor apologies, and then reprinted their leaflet with minor amendments [Appx 25] to the knowledge and satisfaction of McDonald’s. Since that time Veggies Ltd have widely distributed the ‘What’s Wrong With McDonald’s?’ factsheet. On the last day of the trial, Mr Rampton, counsel for McDonalds, stated: ‘I would certainly accept that after the agreement, the settlement with Veggies had been reached, McDonald’s were not able to claim damages against Veggies for further distribution of the material which is the subject of this action. Plainly because there has been an accord of satisfactions...’ [Appx 26 Transcript Dec 13th 1996, p59 ln 35]. The Plaintiffs, by conduct and implication consented to publication of the contents of the amended factsheet, and thereby submitted the said matters to public discussion at that time and ever since. The unaltered parts of that leaflet contained almost all of the statements in the London Greenpeace leaflet which McDonald challenged as defamatory in the proceedings against the applicants. Yet McDonalds agreed with Veggies that their leaflet could be published and circulated; and it was. In other words, the very same statements upon which the libel proceedings against the applicants were based were in the public domain at all material times, and were being published with the knowledge and consent of McDonalds.
    5. Furthermore, the Applicants submit that it is significant that before the issue of writs against the Applicants, McDonald’s made no effort to contact the Applicants to counter the allegations, to seek amendments or to warn of plans to launch proceedings. In the light of this, the Applicants submit that it must have been more than reasonable for them to conclude that the ‘accord of satisfactions’ had settled the matter – at least for the vast majority of the allegations.
    6. In addition to the publication by Veggies of the ‘What’s Wrong with McDonalds?’ factsheet, there was a great deal of evidence that nothing in the leaflet upon which the applicants were sued was new, and that the allegations were already in the public domain. Furthermore, admissions made by McDonald’s during the case ensure that most of the allegations will rightly remain in the public domain. Defence witness testimony could also be relied on to show the existence of the allegations in the public domain, but it has not been necessary to refer to such testimony.
    The applicants rely in particular upon the following matters:

    1. Some general sources:

      a. Robert Beavers: the most senior representative of the first Plaintiff, the person put forward to explain the reasons for bringing the case (see Plaintiffs' Opening Speech, Trial Day 1, p48 ln9 [Appx 27]), recognised that the criticisms made in the factsheet were not new, and had been made by others previously. (Trial Day 123, p12 ln5 and ln41- [Appx...27] He was asked: ‘What I’m saying is the criticisms in this factsheet are in the public domain in America to some extent?’, to which he replied: ‘To some extent’. He specifically recognised ‘McJobs’ as an americanism for McDonald’s jobs (although he was unaware of it being used in the UK in a perjorative sense applying to similar kinds of jobs), a campaign against McDonald’s in the USA in the 1980s regarding involvement in rainforest destruction (including pickets of stores), criticisms of McDonald’s food being unhealthy, and causal links between diet and cancer.

    2. b. Veggies: as explained previously Veggies reprinted the London Greenpeace Factsheet and have been its main distributors from 1987. After being threatened that year with legal action by McDonald's solicitors there were negotiations and the company dropped all further action. The agreement reached specifically accepted the continued distribution of the Factsheet with only minor amendments, in reality only affecting the 'rainforest' section. Veggies continue to circulate this version of the Factsheet widely. McDonald’s have accepted that their agreement with Veggies amounts to an ‘accord of satisfactions’. [Appx...26]

      c. Behind The Arches: This is a book about McDonald’s, authorised by and produced with the assistance of the Corporation in 1986. In this book various criticisms are acknowledged to exist. The book for example includes a substantial section on McDonald’s efforts to keep unions out of McDonald’s. [Appx.28]

      d. Common knowledge and/or belief: Some of the criticisms are, it is submitted, in common parlance, publicly associated with bad practices. For example: ‘McJobs’ being a public by-word for jobs with particularly bad pay and conditions, and no Union rights; McDonald’s food being a public by-word for junk food - highly processed foods high in fat, salt and sugar linked to an unhealthy diet; McDonald’s packaging being publicly associated with being responsible for widespread littering.

      e. Admissions by McDonald’s: The document ‘Examples of Admission Against Interest’, details admissions by McDonald’s representatives and in company documents, including admissions which acknowledge that the various sections of the words complained of were in the public domain (and in some cases in the direct knowledge of McDonald’s themselves) before the trial began (or indeed have become so as a result of their statements made). [Appx...29]

      f. McDonald’s distribution of the factsheet: McDonald’s themselves put the entire London Greenpeace factsheet into the public domain in 1990, before the service of writs, through the distribution of it by their agents who had infiltrated London Greenpeace.

    Sources for each specific issue

    1. There was also considerable further evidence that, on an issue by issue basis, the allegations were already in the public domain and/or subject to admissions to this effect by McDonald’s, or otherwise known to them. For example:

    Tropical/Rainforests

    1. Ecology 2000, Sir Edmund Hilary, published 1984, p31 [Appx 30]
    2. See ‘Note to the Court regarding Jungleburger and some other authoritative sources for defendants’ reasonable belief in words complained of.’ This document was produced for the Court of Appeal. [Appx 31]
    3. Re use of ex-rainforest land, see letter 30.1.92 from Costa Rica’s McDonald’s beef supplier [Appx.32]. This was backed up by Richard Rampton QC, for McDonald's, on the opening day of the trial: 'In Costa Rica, when the first McDonald's resstaurant was opened in 1970, some of the land on which the beef was raised had been rainforest up to the 1960s' [Trial Transcript Day 1, p50 para1 - Appx 33]
    4. Re: Beef exports from tropical forest countries - see particularly Brazilian exports of beef to McDonald’s UK, Sergio Quintana and Jungleburger, Friends of the Earth negotiations, and 'Hoofprints On The Forest' [Appx 34]
    5. Re: Soya - No issue taken against this in the Statement of Claim. See also Examples of Admissions Against Interest [Appx 29] 63 and 64 (background documents show this was a public issue in Germany in the late 1980s)..
    6. Re: Starvation in the third world/cash crop economy - see Veggies Factsheet [Appx...25]
    7. See also Examples of Admissions Against Interest [Appx 29], numbers 43, 47, 56 (Refers to McDonalds Documents dating from 1990), and 61.
    8. See James Nation’s article (1983 ) [Appx 35] also relevant extracts from the Judgment of Mr Justice Bell, [Appx 16] numbers 4-9.

    Forests.

    1. An article by Bruce Hannon is the clear source for the words complained of. [Appx 36]
    2. See also Examples of Admissions Against Interest, [Appx 29] numbers 38

    Recycling, packaging and waste

    1. The 'McToxics' campaign in the USA, mirrored by the campaign by Friends of the Earth in the UK. [Appx 37]
    2. Extract from EDF/McDonald's Report. [Appx 38]
    3. Casper Van Erp testimony: 'McDonald's had quite a bad name and image' in environmental literature in the 1980s. [Appx 39]
    4. See also Examples of Admissions Against Interest number, 30, 31 and 33. [Appx 29]

    Litter

    1. See also Examples of Admissions Against Interest, [Appx 29] numbers 35 - 36
    2. McDonald’s expert - Professor Graham Ashworth [Appx 40].
    3. the public identification of McDonald's with litter.

    Nutrition

    1. See Good Food, Nutrition and McDonald’s [Appx 41]
    2. See also Examples of Admissions Against Interest, [Appx 29] numbers 2, 3, 4, 5, 8, 10, and 11,
    3. including various nutrition documents [Appx 42]
    4. See also relevant extracts from the Judgment of Mr Justice Bell, [Appx 16] numbers 133-138, and CoA pp188-193
    5. The public identification of fast food, such as McDonald's, as junk food.

    Advertising

    1. See Behind the Arches [Appx 28] pp 217-224 (particularly p224: ‘no other marketing factor has been more important in distinguishing McDonald’s as the leader in fast food than its early decision to appeal to children through advertising’.)
    2. See also Examples of Admissions Against Interest, [Appx 29] numbers 15, 17, 18

    Animals

    1. Also standard and widely made public criticisms of cruelty involved in meat production
    2. See also relevant extracts from the Judgment of Mr Justice Bell, [Appx 16] numbers 166, 185.

    Food Safety

    1. See Examples of Admissions Against Interest, [Appx29] number 66 - 68, 70, 73, 75 and 82.
    2. McDonald's Corporation Operations Manual 1990 - extract [Appx 43]
    3. Public reports of food poisoning outbreaks at McDonald’s, eg. Oregon 1982 and Preston [Appx 44]
    4. See also relevant extracts from the Judgment of Mr Justice Bell, [Appx 16] numbers 211, 213, 217-220, 229-231.

    Employment conditions - Pay and conditions and anti-union practices

    1. the everyday use of the word 'McJobs' to describe low paid, menial and poor conditions
    2. Trade Union criticisms of McDonald's around the world. See references to pre-1990 international TU disputes with McDonald's in Bell J's Judgment [see ‘what was proven’ section earlier]. Also in Behind the Arches [Appx 28] (especially pp397-8).
    3. See Examples of Admissions Against Interest [Appx 29], numbers 91, 95, 97 (extracts from McDonald’s employee contract/handbook), 99 (from Behind The Arches pp 397-8), 103 - 105
    4. McDonald’s UK Head of Personnel had told the Daily Mirror in 1986 [Appx 45] ‘We will never negotiate wages and conditions with a union and we discourage our staff from joining.’ (Extract of Bell’s Judgment, number 405 [Appx 16])
    5. See also some of the many relevant extracts from the Judgment of Mr Justice Bell, [Appx 16] numbers 242, 246, 279-289, 293-300, 310-316, 346, 348-9, 405, 409-13, 414-425, 439, 442-467, 482-4.
    1. In the circumstances the applicants contend that the libel proceedings brought against them and the judge’s findings, upheld by the Court of Appeal, violated their rights under Article 10 because (a) there should be a presumption that material already in the public domain or about which the subject either has either consented or does not complain, is either not defamatory, or is privileged, or is otherwise unactionable. (b) alternatively, there should be a presumption that such material is true, and not defamatory, unless the consenting subject establishes otherwise.
    2. Insofar as domestic law enables bodies such as McDonalds to bring proceedings in libel, claiming many thousands of pounds, against certain individuals while at the same time consenting to the publication of the same or very similar statements from others it is arbitrary, unnecessary and disproportionate. It is also discriminatory and contrary to Article 14 read with Article 10.

    (d) The distinction between fact and comment.

    1. The applicants submit that where, as in England and Wales, a strict rule exists that the defendant in defamation proceedings must prove the truth of any assertions of fact complained about, maintaining the correct distinction between fact and comment is crucial. Where matters that are, in reality, comment are categorised as fact, the task of proving truth is impossible and liability in damages inevitably follows.
    2. In the applicants’ case, Bell J adopted a very narrow construction of the notion of comment and refused to recognise a satirical undercurrent, particularly the use of cartoons, jokes or puns), or the use of generalisations (about a whole industry), or the traditional journalistic device of exaggeration and dramatic headlines, of some of the leaflet complained of. This had the effect of placing on the defendants a greater burden when seeking to justify the ‘facts’ as true. (See section on ‘meanings’ below). A campaigning document would, the applicants submit, be traditionally expected to express value judgments and strong and partial views.
    3. Although distinguishing between facts and opinion or value judgments is frequently difficult, the distinction is crucial to the proper protection of free speech. As the Court itself has commented, "[t]he existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof" (Lingens v Austria (1986) 8 EHRR 420 at p.420). And the key nature of the proper distinction between fact and comment was vital to the Court’s reasoning in the subsequent cases of Oberschlick v Austria (1997) 25 EHRR 357, De Haes & Gijsels v Belgium (1997) 25 EHRR 1, Schwabe v Austria (A/242-B).

    (e) Approach to meanings generally

    1. On the question of meanings generally, the applicants submit that by reason of its special importance in a democracy, freedom of speech calls for special protection. This has been recognised in a number of jurisdictions including the United States and Germany, and has found reflection in the Court’s own case law. One important aspect of this protection is the adoption of an analytical technique referred to in the United States as the "innocent construction rule" (see Vick and McPherson, Anglicizing Defamation Law in the European Union, 36 Va J Int L 933 (1996) at p.956 [Appx 46]). Under this approach, which is explicitly employed in some US states, and implied elsewhere, a court should choose an interpretation of the challenged statements that will result in protection for the expression if such interpretation is reasonable (see Vick and McPherson pp.163-167). As the commentator Marlene Nicholson points out, "Justice Bell in McDonald’s … seemingly eschewed such a technique and … on some issues appeared to employ an opposite technique" (McLibel: a case study in defamation law, Wisconsin International Law Journal, Vol.18, No.1 p.30 [Appx 6]). And, as the same commentator also points out, "nearly all close questions were decided in the plaintiffs’ favour" (p.46). That, it is submitted, at least in part, resulted form the applicants’ lack of legal representation and lack of experience in defamation law.
    2. It is submitted that the nature of the document, a campaigning leaflet, was in fact unfairly used by Mr Justice Bell to characterise and influence his interpretation of the meaning of the words complained of in a more negative, defamatory light (eg. See food safety section on meaning). This added an extra burden of the Applicants and therefore sends out a message to the public at large that those making criticisms of powerful institutions will be penalised rather than protected by defamation laws.
    3. The meanings attributed to the allegedly defamatory statements by Bell J in the Applicants’ case (and upheld by the Court of Appeal), were stretched and in some cases bordered on the absurd. The following examples are given, and there are some references to what was established or proven to illustrate the significance.

    Section relating to Economic Imperialism and Hunger, and Tropical Forests and Beef Supplies / ‘Starvation in the Third World and Destruction of Rainforest’.

    1. In this section the leaflet stated:
    2. "What’s the connection between McDonald’s and starvation in the ‘Third World’?,

      THERE's no point in feeling guilty about eating while watching starving African children on TV. If you do send money to Band Aid, or shop at Oxfam, etc., that's morally good but politically useless. It shifts the blame from governments and does nothing to challenge the power of multinational corporations.

      HUNGRY FOR DOLLARS
      McDonald's is one of several giant corporations with investments in vast tracts of land in poor countries, sold to them by the dollar-hungry rulers (often military) and privileged elites, evicting the small farmers that live there growing food for their own people.

      The power of the US dollar means that in order to buy technology and manufactured goods, poor countries are trapped into producing more and more food for export to the States. Out of 40 of the world's poorest countries, 36 export food to the USA - the wealthiest.

      ECONOMIC IMPERIALISM
      Some 'Third World' countries, where most children are undernourished, are actually exporting their staple crops as animal feed - i.e. to fatten cattle for turning into burgers in the 'First World'. Millions of acres of the best farmland in poor contries are being used for our benefit - for tea, coffee, tobacco, etc. - while people there are starving. McDonald's is directly involved in this economic imperialism, which keeps most black people poor and hungry while many whites grow fat.

      [Inserted in the text was a picture of a woman holding a food bowl and a small child]:
      A typical image of 'Third World' poverty - the kind often used by charities to get 'compassion money'. This diverts attention from one cause: exploitation by multinationals like McDonald's.

      GROSS MISUSE OF RESOURCES
      GRAIN is fed to cattle in South American countries to produce the meat in McDonald's hamburgers. Cattle consume10 times the amount of grain and soy that humans do: one calorie of beef demands ten calories of grain. Of the 145 million tons of grain and so fed to livestock, only 21 million tons of meat and by-products are used. The waste is 124 million tons per year at a value of 20 billion US dollars. It has been calculated that this sum would feed, clothe and house the world's entire population fo one year.

      FIFTY ACRES EVERY MINUTE
      EVERY year an area of rainforest the size of Britain is cut down or defoliated, and burnt. Globally, one billion people depend on water flowing from these forests, which soak up rain and release it gradually. The disaster in Ethiopia and Sudan is at least partly due to uncontrolled deforestation. In Amazonia - where there are now about 100,000 beef ranches - torrential rains sweep down through the treeless valleys, eroding the land and washing away the soil. The bare earth, baked by the tropical sun, becoms useless for agriculture. It has been estimated that this destruction causes at least one species of animal, plant or insect to become extinct every few hours.

      Why is it wrong for McDonald's to destroy rainforests?

      AROUND the Equator there is a lush green belt of incredibly beautiful tropical forest, untouched by human development for one hundred million years, supporting about half of all Earth's life-forms, including some 30,000 plant species, and producing a major part of the planet's crucial supply of oxygen.

      PET FOOD & LITTER
      McDonald's and Burger King are two of the many US corporations using lethal poisons to destroy vast areas of Central American rainforest to create grazing pastures for cattle to be sent back to the States as burgers and pet food, and to provide fat-food packaging materials. (Don't be fooled by McDonald's saying they use recycled paper: only a tiny per cent of it is. The truth is it takes 800 square miles of forest just to keep them supplied with paper for one year. Tons of this end up litteing the cities of 'developed' countries.)

      COLONIAL INVASION
      Not only are McDonald's and many other corporations contributing to a major ecological catastrophe, they are forcing the tribal peoples in the rainforests off their ancestral territories where they have lived peacefully, without damaging their environment, for thousands of years. This is a typical example of the arrogance and viciousness of multinational companies in their endless search for more and more profit.

      It's no exaggeration to say that when you bite into a Big Mac, you're helping the McDonald's empire to wreck this planet.".

    1. The trial judge found that:
    2. "The first section of headings and text plainly bears the meaning that McDonald’s is to blame for starvation in the Third World; firstly because it has bought vast tracts of land in poor countries (for cattle ranching presumably) and evicted the small farmers who livered there growing food for their own people; secondly because the power of its money has forced poor countries to export food (beef, most obviously) to it in the United States, and thirdly because it has drawn some Third World countries to export staple crops as cattle feed".40

    3. The Court of Appeal agreed with the judge’s finding on meaning.
    4. The applicants’ submission as to the true meaning of the ‘Economic Imperialism and Hunger’ passage in question was specifically rejected. The Applicants submitted the following meaning to the Court of Appeal as the ‘sting’ of the words complained of: Multinational Corporations and the power of the US dollar are contributing to hunger through their requirements for a supply chain of cash crops destined for the use of western consumers, which are grown on land in poor countries that could otherwise be used by local people to grow their own food. McDonald's is involved in this process.
    5. In rejecting this, it is submitted that the domestic authorities failed to distinguish at all between the criticisms of and comments about McDonald's and the criticisms and comments about the hamburger industry and/or US Corporations in general. Regarding the judge's meaning, above, the words complained of do not say McDonalds 'has bought vast tracts of land in poor countries', but that they have had 'investments in vast tracts of land' (ie beef supply sources).
    6. The courts also failed to recognise the existence of comment in the words complained of.
    7. On the Tropical Forests and Beef Supplies sections of the leaflet, the judge found that they meant:
    8. "… that [McDonald’s] are guilty of the destruction of rainforest; that they use and have used lethal poisons to destroy vast areas of Central American rainforest to create grazing pastures for cattle to be sent to the United States as burgers and to provide fast-food packaging materials; that [McDonald’s] are through this conduct causing wanton damage to the environment and contributing to major ecological catastrophe, and that they are forcing the tribal people in the rainforest off their ancestral territories where they have lived peacefully for thousands of years, without damaging their environment".41

    1. The Court of Appeal agreed with the meaning and agreed that the words complained of were largely statements of alleged facts, not comment or opinion.
    2. Again the applicants’ alternative submission as to meaning was rejected. In that submission, the applicants argued that the following meaning was the ‘sting’ of the words complained of: US Corporations are contributing to an ecological catastrophe by their responsibility for tropical forest deforestation for cattle ranching in their pursuit of profits. McDonald's is involved in this process.
    3. It is contended that again the domestic courts failed to distinguish at all between the criticisms of and comments about McDonald's and the criticisms and comments about the hamburger industry and or US Corporations in general. And again they failed to recognise the existence of comment in the words complained of.
    4. It is also submitted that the domestic courts were wrong to allow a very narrow construction for the word ‘rainforest’ in ruling that "rainforest" in the context of the leaflet, must mean more than tropical forest of any kind and that it would mean luxuriant, broad-leaved, evergreen, very wet, canopy forest - very wet because of very heavy rainfall - to the ordinary reader of the leaflet.
    5. It is contended that the domestic courts were also wrong in ruling that both the general, factual sting and the comment regarding ‘ecological catastrophe’ only related to damage to the environment by destruction of rainforest and thereby discounting or disallowing as irrelevant all the evidence about damage to the environment by other means (by the packaging referred to) such as the use of CFC or HCFC or pentane gases to make polystyrene foam packaging or the simple use of non-biodegradable polystyrene foam packaging, or by the cutting down of forests generally, or by the processing of pulp to make paper or paperboard packaging, or by incineration of waste.

    Section relating to Packaging, Recycling and Waste.

    1. The words complained of are under the heading "Pet Food & Litter":
    2. "McDonald’s and Burger King are two of the many US corporations using lethal poisons to destroy vast areas of Central American rainforest to create grazing pastures for cattle to be sent back to the States as burgers and pet food, and to provide fast-food packaging materials. (Don’t be fooled by McDonald’s saying they use recycled paper: only a tiny per cent of it is. The truth is it takes 800 square miles of forest just to keep them supplied with paper for one year. Tons of this end up littering the cities of ‘developed’ countries.)"

    3. The trial judge held that the reference to 800 square miles of forest was in its context a reference to "rainforest". He also held that:
    4. "… the words "don’t be fooled by McDonald’s saying they used recycled papers: only a tiny percent of it is", purport to state what McDonald’s say in comparison with what the truth actually is. Taken with the leaflet’s introductory theme that McDonald’s has a lot to hide, they amount to a clear allegation that McDonald’s is lying when it claims to use recycled paper".42

    1. Yet again, the Applicants’ alternative meaning was rejected. The applicants had submitted the following meaning to the Court of Appeal as the ‘sting’ of the words complained of: McDonald's say they use recycled paper, but the reality is only a tiny percentage of it is. Their packaging is wasteful and damaging to the environment since it is not recycled, ends up as litter and wastes forest resources.
    2. The applicants had argued that ‘(the truth is it takes 800 square miles of forest just to keep them supplied with paper for one year)" should refer to forests generally (as it is, they submit, absurd that any reader would believe that all the Corporation’s packaging would emanate from tropical forest regions). It also doesn't say that this is the area cut down, but, it is submitted, the area it takes to be able to supply the company year on year.
    3. The applicants also contend that the domestic authorities were wrong to attach significance to the difference between the level of the First and/or Second Plaintiffs' packaging found to be made from recycled materials and the level alleged in the leaflet.
    4. A particular example of the approach adopted by Bell J., which shows no allowance for exaggeration or a difference of opinion, is as follows. The words: ‘Don't be fooled by McDonald's saying they use recycled paper: only a tiny per cent of it is', were translated to: ‘McDonald's is lying when it claims to use recycled paper.’ The leaflet stated that only a tiny percentage of McDonald's packaging was made from recycled paper, but the trial judge found that it was a small but significant percentage. Yet, in the context of freedom of speech, it has to be questioned whether the difference make any material difference to the public's view of the company?
    5. The applicants submit that the meanings of ‘tiny’ and ‘small’ are different to different people. Further, the words complained of do not say that McDonald’s is ‘lying’ - that is a construction of the Judge. An innocent construction is that the company makes public pronouncements such as ‘we use recycled paper’ or ‘we are committed to the use of recycled paper’ when the reality is only a tiny percent of their usage is actually recycled paper. In any event the correct approach, the applicants submit, is to adopt an innocent construction so as to protect freedom of speech.
    6. The Applicants further submit that McDonald’s USA was forced to change its ‘recycled’ labelling claims by the Federal Trade Commission. McDonald’s main witnesses accepted that: the company had used the phrase ‘recycled paper’ or ‘made with recycled paper’ without specifying the percentage recycled; that in order not to be deceptive ‘recycled paper’ must be ‘100% post-consumer paper’; that on a 1-10 scale of priorities, post-consumer content is 9, whereas pre-consumer content is merely 1 or 2; that the Corporation still generally claimed its paper as ‘recycled’, not taking into account the post-consumer content (or lack of it); confirmed that the Applicants’ position on ‘recycled’ labelling claims is the same as that adopted by US Attorneys General whose responsibility is to protect the consumer and enforce labelling/marketing laws. They had stated: ‘Recycled content claims should be specific and separate percentages should be disclosed for post-consumer and pre-consumer materials. To avoid the potential for deception the task force recommends that only post-consumer materials be referred to as ‘recycled material’ ‘. Under this criteria set by law in the USA, most of even the small amount of McDonald’s packaging which was labelled ‘recycled’ at the relevant times would have been deceptively labelled so. This goes to the heart of this part of the judgment. [Appx 47].
    7. Further, only 10 McDonald’s stores in the USA and none in the UK recycled any customer packaging (except for a pilot scheme in Nottingham which the judge ruled was deceptively promoted as a ‘recycling’ scheme when in fact the collected material was dumped in landfill sites) [Appx 48]. This relates to the issue of deception, commitment to recycling and responsibility for litter.
    8. The Court of Appeal, for its part, considered that the judge’s rulings on meaning were correct and that the words complained of in their natural and ordinary meaning were statements of fact, not comment.43

    Nutrition.

    1. The section of the leaflet concerned with nutrition was headed: "What’s so unhealthy about McDonald’s food". The text read:
    2. "McDonald’s try to show in their "Nutrition Guide" (which is full of impressive-looking but really quite irrelevant facts and figures) that mass-produced hamburgers, chips, colas, milkshakes, etc., are a useful and nutritious pat of any diet.

      What they don’t make clear is that a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals – which describes an average McDonald’s meal – is linked with cancers of the breast and bowel, and heart disease. This is accepted medical fact, not a cranky theory. Every year in Britain, heart disease alone caused about 180,000 deaths.

      FAST = JUNK

      Even if they like eating them, most people recognise that processed burgers and synthetic chips, served up in paper and plastic containers, is junk-food. McDonald’s prefer the name "fast food". This is not just because it is manufactured and served up as quickly as possible – it has to be eaten quickly too. It’s a sign of the junk food quality of Big Macs that people actually hold competitions to see who can eat one in the shortest time.

      PAYING FOR THE HABIT

      Chewing is essential for good health, as it promotes the flow of digestive juices which break down the food and send nutrients into the blood. McDonald’s food is so lacking in bulk that it is hardly possible to chew it. Even their own figures show that a "quarter pounder" is 48% water. This sort of fake food encourages over-eating, and the high sugar and sodium content can make people develop a kind of addiction – a "craving". That means more profit for McDonald’s, but constipation, clogged arteries and heart attacks for many customers."

    1. In familiar fashion, Bell J again rejected the applicants submissions on meaning. They had been that the ‘sting’ of the words complained was: McDonald's portray their food as a useful and nutritious part of any diet. The reality is that an average McDonald's meal is high in fat, sugar, animal products and salt (sodium) and low in fibre, vitamins and minerals, and that a diet is of this nature is linked to cancer of the breast and bowel and heart disease.
    2. Bell J, the Applicants submit, wrongly took into consideration the text of the satirical cartoon in the document showing a cow and a person in a hamburger bun with speech bubbles; Cow: ‘If the slaughterhouse doesn’t get you’ Person: ‘the junk food will’.
    3. In this part of the case, the applicants contend that the domestic authorities wrongly relied upon satirical cartoons, graphics, colloquialisms and/or the supposed context to alter the clear natural and ordinary meaning of the words complained of. And again when determining the meaning of the words complained of, the courts failed to put the words complained of into their proper context, in particular failing to distinguish at all between the criticisms of and comments about McDonald's food and the criticisms and comments about fast food and diet in general. The courts also failed to recognise the existence the existence of comment in the words complained of.
    4. The applicants submit that the Court of Appeal was correct to indicate [CoA p188D] that the trial judge was wrong to conduct a scientific enquiry in the way that he did. However, they failed to rule on this vital point (a point which had led to the denial of the applicants right to a jury trial). In the applicants’ submission there was no need, and indeed it was undesirable, for the court to attempt to consider, analyse, evaluate in detail the full range of global scientific studies and opinion on this matter when it had access, for example, to a World Health Organisation report [Appx 19] compiled and published for this very purpose after just such an (exhaustive) exercise at the most relevant time (late 1980s), (this is even more so when McDonalds expert witnesses accepted this as a 'State of the art' report). The applicants were, as a result, put to an unnecessary and onerous burden. It is not in the public interest that the courts conduct lengthy scientific enquiries for the purposes of a libel trial, particularly where eminent scientific opinion is readily at hand. The applicants here rely on the Court’s approach in Hertel -v- Switzerland ref where restrictions on a public debate about matters bearing on public health were found incompatible with Article 10 and also on Bladet Tromso – the press should be entitled to rely on the contents of official reports without having to undertake independent research.
    5. In addition the Applicants refer to the Court of Appeal’s statement that ‘the link generally between diet and cancer is well established’ [p190E-F]. Professor Wheelock [McDonald's UK nutritional consultant and expert witness] stated that the role of diet in cancer was of the order of 35%.' [ie 35% of all cancers are diet-related].
    6. Considering also that the case of a causal link between the eating of McDonald’s food and heart disease was established (by Judgment of the Court of Appeal), it seems very harsh indeed that the sting of this section was not considered to be justified. It may be thought of as indicative of the wrong approach to interpretation of meaning.
    7. In any event the Applicants contend that the resulting judgment is disproportionate.

    Food Safety / ‘Food Poisoning’.44

     

    1. In a box with the heading in capitals "WHAT’S YOUR POISON?", the leaflet contained the following text:
    2. "MEAT is responsible for 70% of all food-poisoning incidents, with chicken and minced meat (as used in burgers) being the worst offenders. When animals are slaughtered, meat can be contaminated with gut contents, faeces and urine, leading to bacterial infection. In an attempt to counteract infection in their animals, farmers routinely inject them with doses of antibiotics. These, in addition to growth-promoting hormone drugs and pesticide residues in their feed, build up in the animals’ tissues and can further damage the health of people on a meat-based diet."45

    1. The Court of Appeal also noted that earlier "when dealing with the exploitation of children through advertising, the leaflet referred to the way in which McDonald’s promoted the consumption of meals as a ‘fun event’ for children and added:
    2. "all the gimmicks and routines with paper hats and straws and balloons hide the fact that the food they’re seduced into eating is at best mediocre, at worst poisonous, and their parents know it’s not even cheap".

    1. Bell J acknowledged that, the text in the box "taken literally and on its own, without regard to its context, was certainly capable of bearing the inoffensive meaning" contended for by the Applicants, namely that there was an additional risk of food-poisoning inherent in a meat-based diet.
    2. At page 470 of his judgment the Bell J said:
    3. "… the text in the box must be taken with the description ‘at worst poisonous’ and the headline ‘What’s your poison?’ to get their combined message, and in my judgment the message and meaning of the leaflet is that the First and Second Plaintiffs [McDonald’s] sell meat products which, as they know, expose their customers including children, to whom they promote their meals, to a serious risk of food poisoning and of poisoning by the residues of antibiotic drugs, growth-promoting hormones and pesticides".

      No other kind of poisoning is referred to in the leaflet.

      McDonald’s could hardly have sold so many products as the ordinary reader of the leaflet must know that they have, without being well aware of any serious risk of food poisoning or residue poisoning that existed".

    1. The Applicants submitted the following meaning to the Court of Appeal as the ‘sting’ of the words complained of: Meat is responsible for 70% of food poisoning incidents, with chicken and minced meat (as used in burgers) the most common sources. Some practices used in the rearing, slaughter and processing of meat can result in damage to the health of those on a meat-based diet. They further submitted that this could not be construed as defamatory of McDonald’s.
    2. Given that the central part of text which was the subject of the food safety issue in the trial was viewed by the trial Judge as ‘certainly capable of bearing the inoffensive meaning pleaded by the Defendants’ [Bell J p470], when taken literally, the Applicants submit that to find, and demand proof for a serious defamatory meaning, constitutes an unnecessary and unfair burden not protective of freedom of speech. Even taking the heading ‘What's your poison' (clearly a play on a well used phrase: ‘one man’s meat is another man’s poison’, not usually taken literally, or play on the phrase ‘what’s your poison’ when buying a round of drinks) and the words on the previous page into account i.e. ‘at best mediocre, at worst poisonous', should not have led to a requirement for the Applicants to prove that there was a serious risk of getting food poisoning from eating McDonald's food. Those words should surely have been considered to be comment in any event. In context ‘at best mediocre at worst poisonous’ would clearly be seen as a value judgement on the nutritional value of the food, and the possibility it could be bad for you (given its high fat, low fibre etc nature as referred to in the previous section of the leaflet).
    3. Further the Applicants submit that the wrong approach was adopted by the courts, in particular ruling that the relevant section of the words complained of refers to McDonald's specifically or separately from the meat industry (and modern agricultural practices) in general. This approach is certain to encourage a chilling effect on debate on issues of public importance (such as food safety concerns). Generalities are often raised during media focus on specific individuals or organisations, and such journalistic techniques would not be protected by such approaches in interpreting meanings of words complained of.
    4. Bell J, rather than find an innocent construction of the words complained of, in fact wrongly created seemingly the most defamatory construction possible: that 'the risk of poisoning was very real, serious and substantial' because 'there would in my view be little point in telling the ordinary reader' that McDonald's food was 'at worst poisonous, unless the message was that the risk of poisoning was very real, serious and substantial'. The applicants submit that he erred by surmising that 'there would be little point'. This seems to be an example of an approach which penalises rather than protects the public’s right to express views in a document with a campaigning character.
    5. Having set, the Applicants submit, an unreasonable standard or burden of proof on the defence, he makes a further strange construction in p516 paras 3 and 4. He states: 'The First [Note: we think he must actually mean the Second - UK] Plaintiff's objective of quick service taken with a perfectly normal share of human fallibility in its restaurant staff, leads to the service, on occasions, of undercooked minced meat products with a resulting risk of food poisoning... The number of occasions when this happens is very small however, when put against the number of meals which are served and EVEN THEN THE RISK OF FOOD POISONING IS SMALL' [the applicants’ emphasis] due to which part the customer eats and the body's protective abilities. But, it is submitted, this cannot be the case unless his definitions and interpretations of what is a 'small' risk, and 'very real' risk are absurd. By this criteria, if every burger sold by McDonald's was undercooked, the risk of food poisoning would be 'small' - when in fact all public health advice and practice, and the law, and governmental intervention on this issue, is geared to recognising that selling undercooked burgers is totally unacceptable in this day and age, and a prosecutable offence. Indeed McDonald’s themselves have been fined for such offences.
    6. The courts finding on this aspect of the meaning is fundamentally at odds with official Public Health bodies’ approach to the risks of food poisoning.
    7. Hence, as with almost all the issues, if the trial judge’s findings and sub-findings of fact (see previous section ‘What Was Proven’) are considered against an appropriately constructed meaning for the words complained of, a very different verdict would have been found.
    8. The judge had found that there were US and UK outbreaks of serious Ecoli 0157H food poisoning due to the selling of undercooked McDonald's burgers. (Note: recently there were multiple deaths in Scotland, not linked to McDonald’s, due to Ecoli contamination in undercooked beef). These outbreaks show that if beef is undercooked and sold the risk is absolutely huge and very serious to the point of death. This is particularly so with hamburgers which are all synthesised from the batching and blending of the flesh of many carcasses, hence guaranteeing the spreading of any Ecoli 0157H bacteria throughout every batch of burgers produced at McKeys, McDonald’s pattie suppliers.[ See earlier for what was proven on this issue].
    9. On p511/3 he finds that beef products have been undercooked... 'mostly beccause of pressure to produce large quantities of meat at busy times.The risk of this happening is endemic in the fast food system whatever the protective measures the Plaintiffs put in place.' Its hard to see a more cut and dried case.
    10. Bell J did accept that there was specific evidence of undercooking (due to systemic reasons such as pressure of work, inadequate attention to equipment defects etc, rather than individual human failings) at at least 4 stores (Sutton, Heathrow, Colchester and Bath - see Bell J pp 510 and 511) – the applicants submit that the proper test should have been: is this a substantial percentage of the small number of stores looked at during testimony over this issue? We say this plainly is, and therefore the risks are significant and systemic.
    11. The Court of Appeal rightly found [CoA p168F] that 'the proposition 'arsenic is very poisonous' is not rendered untrue because very few people take arsenic', and it is submitted that this applies with equal force to the food safety issue where it was clearly found by the trial judge that bacterial contamination of McDonald's raw meat products is widespread [eg. Bell J p503] and that the risk of undercooking 'is endemic in the fast food system' [Bell J p511]. Given the difficulties of proving which meal a particular bout of food poisoning is attributable to [see also Bell J p513], these findings should have been sufficient to justify even the meaning as determined, particularly given the additional finding that ‘the defendants were able to establish some incidents of food poisoning attributable to eating McDonald's food.' [Bell J p476]
    12. The trial judge concluded that the risk of food poisoning (which he defined as any gastro-intestinal infection by food-borne organism) from eating McDonald’s food was minimal:
    13. "From time to time people will no doubt get food poisoning from eating McDonald’s foods but the risk is very small indeed" [Bell J p.517].
    14. The judge also found that there was no evidence that antibiotic or growth promoting hormone drug residues had actually been found in McDonald’s food and no evidence that pesticide residues had been found in their food. He concluded that the charge as contained in the meaning he had found was not true.46 However the applicants note that several of the witnesses for McDonald’s accepted that antibiotics and hormones were or had been routinely given to farm animals raised for McDonald’s meat, some of which had subsequently been banned, and that there is a body of scientific opinions which holds that such drugs can be harmful to humans.
    15. The Court of Appeal concluded that the text in the box, taken in context, did refer to McDonald’s.47
    16. The Court of Appeal also held that "the conclusion reached by the judge that the words meant that McDonald’s must know that they were selling such meat products as would expose customers to a serious risk was a proper one in the circumstances". This was because given "the scale of McDonald’s trading, of which the ordinary reader would know, one would expect them to be aware of such a serious risk of food poisoning or residue poisoning if such a risk existed. Moreover, that meaning would be strengthened by the earlier reference to "at worst poisonous".48
    17. The Court of Appeal concluded that "the judge’s finding that the words meant that there was a serious risk of food-poisoning and residue poisoning was soundly based, once the words are read in context. In short, he was right in the meaning which he found and that meaning was a defamatory one".49
    18. On the defence of justification the Court of Appeal said:
    19. "There is no doubt at all that the judge accepted that there was some degree of risk of food-poisoning from eating food produced by McDonald’s. … The judge concluded that there was some risk of contamination of food by such organisms all through the food supply pipeline – at slaughterhouses and subsequently. He also found that on occasions at busy times undercooked minced meat products were served, with a resulting risk of food poisoning. However, he rightly observed that all this begged the question of the scale of the problem. On that, he found that the incidents of food poisoning attributable to eating McDonald’s food were very few indeed when compared with the vast number of meals sold by [McDonald’s] over the years. … The judge’s reference to the vast number of meals sold was obviously correct, and it does provide the context for any assessment of the scale of food-poisoning incidents and the risks involved".50

    20. This approach cannot be fair or appropriate as it implies that the applicants would have had to call witnesses from a substantial percentage of McDonald’s stores.
    Employment.51
    1. The section of the leaflet relating to Employment was headed ‘What’s it like working for McDonald’s?’ The text read:
    2. "THERE must be a serious problem: even though 80% of McDonald's workers are part-time, the annual staff turnover is 60% (in the USA it's 300 %). It's not unusual for their restaurant-workers to quit after just four or five weeks. The reasons are not had to find.

      NO UNIONS ALLOWED

      Workers in catering do badly in terms of pay and conditions. They are at work in the evenings and at weekends, doing long shifts in hot, smelly, noisy environments. Wages are low and chances of promotion minimal.

      To improve this through Trade Union negotiation is very difficult: there is no union specifically for these workers, and the ones they could join show little interest in the problems of part-timers (mostly women). A recent survey of workers in burger-restaurants found that 80% said they

      needed union help over pay and conditions. Another difficulty is that the 'kitchen trade' has a high proportion of workers from ethnic minority groups who, with little chance of getting work elsewhere, are wary of being sacked - as many have been - for attempting union organisation.

      McDonald's have a policy of preventing unionisation by getting rid of pro-union workers. So far this has succeeded everywhere in the world except Sweden, and in Dublin after a long struggle.

      TRAINED TO SWEAT

      It's obvious that all large chain-stores and junk-food giants depend for their fat profits on the labour of young people. McDonald's is no exception: three-quarters of its workers are under 21. The production-line system deskills the work itself: anybody can grill a hamburger, and cleaning

      toilets or smiling at customers needs no training. So there is no need to employ chefs or qualified staff - just anybody prepared to work for low wages.

      As there is no legally-enforced minimum wage in Britain, McDonald's can pay what they like, helping to depress wage levels in the catering trade still further. They say they are providing jobs for school-leavers and take them on regardless of sex or race.The truth is McDonald's are only interested in recruiting cheap labour - which always means that disadvantaged groups, women and black people especially, are even more exploited by industry than they are already."

    1. The trial judge’s conclusions about employment practices are set out at p.217B-222B of the transcript of the Court of Appeal’s judgment.
    2. The Court of Appeal allowed the Applicants’ appeal under the Employment section to the extent that it ruled that the defamatory imputation that "workers in catering (including those working for McDonald’s) do badly in terms of pay and condition" was comment52 and was objectively fair53. The defence of fair comment therefore succeeded.
    3. Unions.

    4. In relation to the words "McDonald’s have a policy of preventing unionisation by getting rid of pro-union workers" the Court of Appeal said:
    5. "The judge held that this was not just part of the general sting of this leaflet, but a specific defamatory charge of its own. We agree, and we also agree that this is a statement of fact".54

    6. The trial judge held that McDonald’s were strongly antipathetic to any idea of unionisation of crew in their restaurants.55
    7. The Court of Appeal held that the judge was correct to equate "getting rid of" in its context with "sacking"56, and held that the words complained of imported the factual allegation that the policy was put into practice.57
    8. The Applicants had submitted the following meaning to the Court of Appeal as the ‘sting’ of the words complained of: Workers in catering, including at McDonald's, do badly in terms of pay and conditions, and find it difficult to improve this when denied union rights. McDonald's have a policy of actively preventing unionisation.
    9. The courts, it is submitted, failed to distinguish at all between the criticisms of and comments about McDonald's and the criticisms and comments about the catering industry in general. Further the Applicants submit the domestic courts were wrong to require the applicants to prove ‘sacking’ workers, rather than ‘getting rid of’, when the latter could include a number of practices, such as for example cutting workers hours or repeatedly giving them the dirtiest jobs with the aim that they will then leave the employment without actually being sacked (as was found in many cases).
    10. The applicants also submit that the courts were wrong to conclude that a significant distinction could be drawn between an allegation that the First and/or Second Plaintiff were "anti-union" and an allegation that they had a policy of preventing unionisation by getting rid of pro-union workers; and/or that the findings that the First and/or Second Plaintiff were strongly antipathetic to the idea of unionisation of crew in their restaurants did not meet the allegation that they had a policy of preventing unionisation by getting rid of pro-union workers; and/or that there was not a policy of preventing unionisation by getting rid of pro-union workers, in the light of the admission by the Head of Personnel that the employee contract effectively meant that 'employees would not be allowed to carry out any overt union activity on McDonald's premises'.
    11. The Applicants argue that it is wrong that an allegation of being anti-union is not defamatory, if having a policy of preventing unionisation is. Justice Bell found that McDonald's were strongly antipathetic to the idea of unionisation of crew in their restaurants [Bell J p695 ] and should not have found that the public would draw a significant difference (in their view of the company) between that and a policy of preventing unionisation by getting rid of pro-union workers, particularly taken with the finding that there have been instances where crew have been victimised or lost their jobs for union activity [Bell J p695].
    12. The Applicants further submit that both the Trial Judge and the Court of Appeal gave inadequate weight to the admission (see above, and transcript Day 120 p5 line 30) of McDonald's UK Head of Personnel, indeed it is not dealt with in either Judgement, and submit that it is a severe interference with freedom of speech if despite an admission that no overt union activity would be allowed on McDonald's premises (and employees could be sacked for carrying out such activity), people are not entitled to say that the company has a policy of preventing unionisation by getting rid of pro union workers.
    13. The Applicants further submit that the Courts failed to rule on the issue of the applicants' written submission that McDonald's UK employee contract imposes unlawful discrimination against the trade union rights of all its workforce. It is hard to imagine, the applicants submit, a more concrete example of a policy for getting rid pro-Union workers than a blanket prescription and ban on all forms of union activity with the threat of discipline and dismissal, enshrined in the contract of employment and backed up by clear testimony on oath by the Head of Personnel.

    (f) Assessment of the facts

    1. It is submitted that it is a fundamental principle under the Convention that domestic courts determining defamation proceedings must proceed on an acceptable assessment of the facts (see Hertel above). For the reasons set out in section above, it is submitted that this principle was breached in the Applicants' case. The main findings did not reflect the detailed facts, and the adoption of a wrong approach to meanings generally, led to the result that those detailed findings were given little, if any, weight in the final assessment of liability.
    2. The applicants further submit that many of the findings did not reflect the tenor of the evidence given and a number of the applicants witnesses were cricticised for ‘antipathy’ to McDonald’s (and therefore treated as unreliable), whereas Bell J did not question the reliability of McDonald’s witnesses on the basis that they were ‘pro’ McDonald’s (even though most of them were still in the employment of the company).

    (g) Damages.

    1. 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 McDonald’s. In this respect it is noteworthy that McDonald’s 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.
    2. Furthermore, it is submitted that in this case the damages awarded by the trial judge as amended and/or upheld by the Court of Appeal were unjustified and/or too high, and/or disproportionate, having regard to (inter alia):
    1. the fact that neither the First nor the Second Plaintiffs had to prove or did prove any financial loss;
    2. the limited means and extent of publication (if any); and/or
    3. the fact that the words complained of continued to be published with the McDonald’s consent (through the accord of satisfactions with Veggies Ltd); and/or
    4. the damaging findings and sub-findings of fact made against the McDonald’s by the trial judge and Court of Appeal, including those regarding McDonald’s deceptive or exploitative advertising.
    1. The Applicants submit that separate damages for each plaintiff cannot be justified in light of the admission by the Plaintiffs during the Court of Appeal hearing that US McDonald’s loss could only be as result of loss of trade to UK McDonald’s. They further submit it is disproportionate to order defendants to pay thousands of pounds damages to a corporation which has no feelings, when the corporation has not shown any financial loss as a result of the criticisms made, and when the publication was only by way of a leaflet distributed to a limited number of people.
    2. It is further relevant that the words complained of specifically criticise all the business competitors of McDonald’s and hence neutralise any specific concern over McDonald’s’ loss of profits in that regard.
    3. Further it is not appropriate for any damages to be awarded to a company which has made an agreement to allow continued distribution of essentially the same material, by another party.
    4. Further they submit that it cannot be right for a plaintiff to be awarded damages after serious adverse findings are made against it on a number of issues central to its everyday business practices eg. that it exploits children, deceptively promotes food as nutritious etc. Does such an award of tens of thousands of pounds in these circumstances not bring the legal system into disrepute in the eyes of the public, when no sanctions have been imposed on the company over the adverse findings? These are questions of public importance in relation to how much damage can be caused to a reputation by findings. We submit that a point is reached where there can be no further damage done by allegations not proved, particularly in the light of findings of deliberate deception, even if they are not specifically in issue in the publication concerned.
    5. The Applicants submit that the highly damaging findings of fact made by the trial judge and Court of Appeal are findings against McDonald’s' global core business practices (all matters of great public concern in the UK) viz: exploitation of children; deceptive promotion of their food as 'nutritious'; their food being high in fat and salt and low in fibre; that their food can contribute to a very real risk of heart disease (encouraged by the Plaintiff's false nutritional advertising, as ruled by Bell J); paying such low wages as to depress wages in the UK catering industry; culpable responsibility for cruelty to animals; and the supporting facts for the decision that it is fair comment to say that their workers worldwide do badly in terms of pay and conditions. In addition, the 'sub-findings' of Bell J, on the issues not found to be fully justified by the defendants, are so substantial as to neutralise the findings that were not found in their favour.
    6. Further McDonald’s were found by the trial Judge to have committed a large number and wide range of deceptive, and furthermore deliberately deceptive and sometimes illegal acts (including deceptive advertising, breaches of employment law, breaches of animal welfare laws and government guidelines, their deliberate misleading of Members of Parliament and others previously threatened with libel writs), which are individually and/or cumulatively of such a serious nature that their reputation could not suffer as a result of any of the matters which the court found had not been justified by the applicants.
    7. The Applicants further submit that McDonald’s reputation is largely an artificial construct, based as it is on a huge marketing spend, which in fundamental respects has been found in this case to have been based on exploitative and deceptive marketing strategies. Hence any consideration of actual pecunary damage to the company that it may demonstrate should be mitigated by a consideration of the implication of the findings made in this case generally.
    8. Further, the courts found that McDonald’s had distributed 300,000 leaflets publicly countering the criticisms in the words complained of and attacking the credibility of the Applicants, containing false and unjustified statements.

    Summary of Article 10 complaint.

    1. The Applicants submit that the interest of a multinational corporation such as McDonald’s in protecting its reputation was insufficient to outweigh the important public interest in the freedom of the Applicants to impart information on matters of legitimate public concern. Further, there was no reasonable relationship of proportionality between the restrictions placed by the measures applied by the High Court and the Court of Appeal on the Applicants’ right to freedom of expression and any aim pursued. As the commentator Marlene Nicholson (Professor of Law at DePaul University) HAS observed:
    2. "The combination of strict liability, the burden of proof on the defendants, and the court’s interpretation of statements in a way most likely to lead to a finding of defamation probably would have made it impossible for any defendant to succeed in such a case. Lack of resources and legal representation made these defendants particularly vulnerable." (McLibel: A case study in defamation, Wisconsin International Law Journal, Vol.18, No.1, p.46) [Appendix 6]
    3. Defamation proceedings inevitably inhibit free speech and, it is submitted, where that speech involves matters of public concern, any such restriction must be very carefully examined. Given the obvious interference with the Applicants' freedom to engage in campaigning and protest activity occasioned by this case, the Applicants' contend that it is for the government to justify that interference as legitimate, necessary and proportionate under Article 10(2). And the question of proportionality is particularly important, given the sheer number of obstacles put in the way of the Applicants in defending themselves against the proceedings brought by McDonalds. It is submitted that either alone or taken together, each of the matters complained about under Article 10 demonstrate that domestic law, in principle and in practice, operates in a wholly disproportionate, unfair and arbitrary manner.

    VIOLATION OF ARTICLE 6.

    1. Article 6, so far as relevant, provides:
    2. "1. In the determination of civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

    3. The Applicants submit that the conduct of the libel proceedings in domestic law against them violated their right to a fair trial.
    4. Although there were numerous features of this unfairness, including, in particular, the blanket prohibition on legal aid and the complexity of the proceedings, the Applicants invite the Court to consider the overall fairness, taking into account that:
    1. the proceedings against the Applicants were the longest legal proceedings in English legal history (three times the length of the previous longest libel case);
    2. the delay in bringing the case to trial;
    3. libel law is, by its very nature, highly complicated, specialist and technical;
    4. on the facts, the case against the Applicants was highly complex, involving numerous expert witnesses on a wide range of scientific and other matters;
    5. the Applicants were without legal representation or (effective) legal assistance both in the preparation for trial, during trial and for the appeal; and
    6. the Applicants were simply unable to prepare and advance their defence as they would have wished.
    1. Moreover, the considerable burden on the Applicants exacerbated by their lack of representation resulted in substantial stress. Mr Morris was a single parent of a young child, throughout the proceedings. Ms Steel developed eczema and suffered from exhaustion. The length and breadth of the hearing has already been set out; coupled with preparation and, ultimately, the appeal, it dominated the Applicant’s lives for five full years, during which they were unable to pursue any other work activities and very few social activities.
    2. A few aspects of this unfairness will be developed here.

    (i) Lack of legal aid and/or representation.

    1. The Applicants are aware that Article 6 of the Convention does not guarantee legal aid or legal representation in civil proceedings. Nonetheless, they do contend that, like any other restrictions on effective access to the courts, a blanket ban on legal aid has to be very closely scrutinised indeed. That is because a blanket ban makes it impossible for the relevant authorities to respond to real examples of injustice brought about by a lack of legal representation.
    2. In this context, the Applicants emphasise that their complaint is not limited to the lack of legal representation at trial. It included the lack of aid with administration, photocopying, note-taking, lack of storage and working space etc.
    3. Obviously their case was one in which the specialised skills of lawyers were needed in court to examine and challenge witnesses, advance sophisticated legal arguments and deal with questions from the judge, for example over the Haringey Affidavit, see later. But the lack of legal representation went much wider than that. It is fundamental to effective access to justice that both parties to civil litigation have a fair opportunity to prepare their case before trial. In the Applicants’ case, the sheer breadth and complexity of the issues at stake demanded investigation of matters around the UK and abroad, in particular regarding McDonald’s beef supply lines in Central America, and regarding company disputes with its employees over unionisation in quite a few countries, and the tracing, proofing and preparation of both factual and expert witnesses. Had legal aid been granted, it would have provided for this preparation. It is not uncommon in complicated cases for legal aid to cover such preparation work as is needed of witnesses abroad and, where necessary, legal aid is extended to cover the preparation of expert witnesses.
    4. Lack of legal aid meant that the Applicants were simply unable to contact all the witnesses they would have liked to have called, unable to properly proof those who were willing to come forward and rarely if ever did the Applicants have the opportunity of considering the witness evidence at all before it was called, or of clarifying matters with witnesses. A particular problem was the lack of resources to pay experts. This inevitably reduced the pool of experts that the Applicants could choose from, it being limited to those who were prepared to give their opinion for free and to pay their own travelling expenses; it also meant that the Applicants were not really in a position to ask those experts as were willing to assist them to undertake further work, or expand on the (very often sketchy) statements they prepared. This, it is submitted, would be unheard of either for a party with resources to pay privately for lawyers, or for a legally aided party in any other proceedings than libel.
    5. These difficulties were added to considerably by the failure of the domestic courts to adhere to normal procedure and require full discovery to be made by McDonald’s before the parties exchanged witness statements. This failure had the effect that the applicants had to contact and liase with some witnesses a number of times to obtain supplementary statements regarding the documents, whilst others of the applicants witnesses did not have the chance to comment on relevant documents.
    6. In the circumstances, it is submitted that it is obvious that the Applicants’ case could, and would, have been better presented if they had had the intense legal advice and assistance that their case warranted. There can be no doubt but that legal aid would have been granted if the cause of action had been anything other than libel. Very probably legal aid would have covered solicitor, junior and leading counsel. Moreover, this was not, unlike some cases (such as employment tribunals or mental health review tribunals) an area where the domestic authorities had simplified practice and procedure in an effort to overcome the difficulties caused by a blanket ban on legal aid. On the contrary, the rule that libel proceedings must be issued in the High Court (precisely because they are deemed to be so complex in law) means that such proceedings are conducted in the most difficult circumstances for litigants in person.
    7. The problems the applicants faced generally were underlined by Mr Justice Bell himself during the trial when he said: 'For better or worse the law of defamation has grown up in its own special way over... the last 150 years, and whereas in ordinary negligence claims if you don't know what the law is you can say what you think is sensible and there is a ninety percent chance of you being right, I'm not sure the percentage isn't the reverse of that in the law of defamation. But there we are.' [Appx 49]
    8. The inequality between the parties was manifest. In court McDonalds were represented by specialist counsel (both leading and junior barristers were specialists in their field) plus at least one solicitor, often two, and sometimes legal assistants/secretaries as well. Outside court, whilst the barristers prepared for cross-examination and legal argument, the solicitors, legal assistants and secretaries carried out the administration of the trial, ranging from completing correspondence, to photocopying and filing, to taking of witness statements and making the necessary arrangements for witnesses to attend. These administrative matters could also be attended to by the various assistants whilst the trial was being heard in the courtroom. As noted above, the trial involved over 40,000 pages of documents on a very wide range of issues. A substantial proportion of these were disclosed on a day by day basis during the course of the trial, so the administration in filing, keeping track of and reading the necessary documents was immense. The Applicants had to complete all of these tasks while the trial was ongoing and they were appearing in court every day, whilst simultaneously keeping up with their domestic responsibilities and with the disadvantage of lack of legal experience. Additionally, although the applicants had made numerous applications for discovery before the trial started, no sanctions were imposed by the courts on McDonald’s for their failure to produce the documents until well into the trial.
    9. The applicants submit that Ms Steel faced particular problems in the witness box with no-one to lead the evidence she needed to give (as Counsel would normally do) and ask her turn to particular pages to comment. Although she was allowed to have her statement and some notes with her in the witness box, it was still difficult to ensure that all the relevant matters were covered, and to ensure they had been covered in a way which could be followed and understood by the Judge (another function of counsel of course being to pick up on matters and clarify where necessary). In fact, in a number of instances in the Judgement Bell J criticises Ms Steel for matters where he has misunderstood the evidence she gave, and for not referring to specific documents in the course of her evidence and the applicants submit that he made insufficient allowances for the difficulties she faced giving evidence over a period of four days on such a wide range of matters, without anyone to guide her.
    10. It is worth noting the advice that the Applicants were given after receipt of the writs, namely that they faced a nigh on impossible task getting even as far as the trial, but in particular in producing all the pleadings, documentation and evidence necessary to prove such a wide range of statements without resources, legal experience or legal aid. This was the sole determining factor for the other three defendants in their reluctant agreement to ‘apologise’ to McDonald’s, agree not to repeat the alleged libels and withdraw from the litigation. [See Appx 18] In fact the only reason the applicants were able to get through the 314 day trial was because of public support and donations and people assisting for no payment. For example experts preparing reports without charging the standard (or any) fee, and witnesses preparing their own statements. It is a breach of the requirement for a fair trial that litigants should have to rely on such public goodwill in order to be able to defend a case on issues such as these.
    11. The Applicants illustrate the disadvantages they faced as a result of this lack of legal representation with one particularly acute example which had implications for the success of the case at all against Mr Morris:

    THE ‘HARINGEY AFFIDAVIT’

    1. Publication was an issue in which the burden of proof was on McDonald’s. Both Applicants had strongly contested the issue, and indeed still do.
    2. An affidavit (the ‘Haringey' affidavit) [Appx 50] was drawn up by a solicitor for the 2nd Applicant in other proceedings, which contained a clear error in a two sentence shorthand summary of the current proceedings [CA pp80-83]. The error was not noticed by the 2nd Applicant at the time he signed it. By omission of the word ‘alleged', the sentence was said to be an 'admission' of both defendants' responsibility for production of the words complained of in the current case (although it was later accepted by the Plaintiffs and the Trial Judge that it could not be true of the 1st Applicant). The solicitor confirmed in writing [Appdx 50] to the court that the 2nd Applicant had instructed her to correct the affidavit (some months before it came to the attention of McDonald’s solicitors in this case) but that she had not done so because the error was not material to the proceedings for which the affidavit was sworn and hence she could not justify an application for further legal aid in that case to make the amendment.
    3. The Applicants submit that in these circumstances the affidavit should not have been admissible in evidence, or should not have carried any weight as evidence, or that the Trial Judge had a duty to warn the unrepresented 2nd Applicant that he would not accept the evidence contained in the solicitor's letters unless the solicitor attended court.
    4. However, Bell J used the affidavit as the basis for the finding against Mr Morris of involvement in production of the leaflet complained of, without which, the applicants submit, it is highly likely the entire case against Mr Morris would have been dismissed. The only other evidence of alleged participation in production was from the witness Allan Claire (enquiry agent for McDonald’s), of whom Bell J had stated "Much of Mr Clare's evidence was challenged by the Defendants, and as a result of the matters to which I have just referred I have concluded that it would be unsafe to rely upon his evidence save where it is supported by other, reliable evidence or by some strong, inherent likelihood of the situation as I see it, or where it might be thought to weigh against his or McDonald's interests. I will refer only to the parts of his evidence which in my view pass one or more of those tests and which add something to the case."
    5. In relation to this matter the Court of Appeal stated58;
    6. "The affidavit was no doubt drafted by a solicitor, as some of the phraseology indicates. But it was duly sworn by Mr. Morris, and he did not give any admissible evidence at trial to the effect that the words "we had produced" were a mistake in relation to him. It was accepted that, insofar as those words seemed to relate to Ms. Steel as well, they were inaccurate, but that in itself does not mean that they were inaccurate when referring to Mr. Morris. The judge gave his reasons for rejecting such an argument, saying that in his view that passage in the affidavit "would have jarred (with Mr. Morris) unless the truth was that he had produced copies of the leaflet complained of". We see the force of that.

      The judge also relied on Mr. Morris' longstanding involvement with London Greenpeace during the period when the leaflet in question was produced, and on some evidence given by Mr. Clare, another enquiry agent. According to Mr. Clare, he was told by Mr. Morris at a meeting on 1st March 1990 that he had helped produce the leaflet/s for the anti-McDonald's campaign. Mr. Clare's notes of that meeting supported that evidence.

      The appellants criticise the judge's reliance on that evidence from Mr. Clare, and it is true that the judge took the view that, for reasons which need not be set out in this judgment, generally

      "it would be unsafe to rely upon his evidence."

      The appellants rely upon that statement. However, the same sentence continues:

      "save where it is supported by other, reliable evidence or by some strong inherent likelihood of the situation as I see it, or where it might be thought to weigh against his or McDonald's interests."

      As a result, the learned judge disregarded Mr. Clare's evidence except where it passed one or more of those tests. That was the situation in respect of the reported comment by Mr. Morris that he had produced the leaflet for the anti-McDonald's campaign. It was, as the judge saw it, in accord with Mr. Morris' long-standing membership of the group and consistent with his own affidavit in the Haringey proceedings. As a result, the judge accepted that part of Mr.Clare's evidence.

      In our judgment, he was entitled to do so. It met the criteria which the judge had earlier set out, criteria which themselves embody a reasonable approach to such evidence. In consequence the judge's finding that Mr. Morris had participated in the production in 1986 of the leaflet complained of was one which was open to him on the evidence. We can see no basis for interfering with it or with his conclusion that that production was done with the intention that copies of it should be published whenever and wherever possible in the future.

      Therefore, although it is right that there was no direct evidence of Mr. Morris subsequently distributing copies of that leaflet, his responsibility for its publication during the relevant period was clear. It rested on the twin pillars of his involvement in the anti-McDonald's campaign, of which distribution of the leaflet was an integral part, and of his participation in the original production of the leaflet. We are in no doubt that the conclusion reached by the learned judge that both appellants were responsible for publication, albeit for somewhat different periods of time, was right."

    1. In using the affidavit in this way Bell J stated in his judgment that the letter from Mr Morris’ solicitor was not evidence and that Mr Morris should have called her as a witness. The applicants contend that the believed the letter from the solicitor was adequate explanation of the circumstances of the affidavit, and that no mention was made by anyone in court that the solicitor should be called to give evidence. Hence they submit that their lack of legal knowledge and representation resulted in a serious miscarriage of justice.
    2. It should be noted that the mistake made by the solicitor for the second applicant was one which she was not alone in making. For example;
    1. During a hearing in which the Applicants were legally represented, the Court of Appeal ruled in the defendants’ favour over an appeal by the defence against the striking out of some aspects of the defence case. Lord Justice Neill ruling on 25.3.94 [Appdx 51], 'McDonald's & Anr vs Steel & Anr' included the statement (p2E): ‘On various dates between October 1989 and April 1990 the defendants with other persons distributed and published in this country a leaflet entitled ‘What’s Wrong With McDonald’s?’ ‘. This ruling was summarised in the All England Law Reports page 615 (first sentence) as: ‘In 1990 the plaintiffs issued libel proceedings against the defendants in respect of serious allegations about their operation of a chain of fast food restaurants contained in a leaflet which the defendants had published and distributed in the United Kingdom.’ The Law Reports went on to repeat on page 617 the above quote of Lord Justice Neill.
    2. The European Human Rights Commission, in 'S and M v United Kingdom, May 1993' , following the defendants’ application over the denial of legal aid, ruled [Appdx 52 ,CD172 of the EHRR - Commission Supplement, first sentence]: ‘The Facts - The applicants produced a leaflet entitled ‘Whats Wrong With McDonald’s?’ dealing with certain of McDonald’s business practices...’.
    1. Both rulings contained exactly the same error as made by the second Applicant’s solicitor, and the Applicants submitted in the courts below that those rulings constituted either prejudice of the applicants case (those rulings having been published before the ‘Haringey' affidavit was written), or in the alternative served to neutralise the alleged 'admission' by the second Applicant as mere shorthand. These questions are a matter of public importance in the light of current cuts in UK legal aid and pressure on solicitors to restrict their applications and hence their ability to serve their clients effectively.
    2. The Applicants contend that the situation outlined above occurred as a result of the lack of legal aid in their case, and/or the failure of the courts to ensure a fair trial under the convention.

    Oppression.

    1. It is submitted that, quite apart from any question of legal aid and legal representation, the case was personally oppressive to each of the Applicants who had to endure the relentless pressure and stress of such a long, detailed, high profile, and continuous (unbroken) action unaided to any significant degree.

    2. In particular, many requests for adjournments and/or further time to prepare were sought, but few were granted. The following are examples:
    1. An application for adjournment requested when Mr Morris’ son (for whom Mr Morris had sole care and responsibility) broke his leg. (See days 126, 127) resulting in the trial continuing in his absence
    2. Applications for adjournments or breaks when the applicants were exhausted were rarely granted. In particular when Ms Steel provided letters from her doctor confirming she was suffering from stress and exhaustion (March 6th 1995 and March 11th 1996) which resulted in the trial continuing in her absence.
    3. An application for an adjournment when McDonalds withdrew Transcripts from the Applicants part way through the trial (and the Applicants needed to make arrangements to deal with this, and their appeal against this decision). (Days 147, 157, 158)
    4. Numerous other applications for breaks both for preparation time and for rest, in particular following the substantial amendments to McDonald’s Statement of Claim.
    1. The simple fact is that the Applicants were unable to keep up with the pace of the case particularly in any equal or effective way. This meant that they were ill prepared for cross-examination of witnesses (having been unable to read all the necessary and relevant documentation beforehand), unable to adduce all the relevant and available evidence that their witnesses were able to give and unable to advance their case properly.
    2. A particularly acute problem was the preparation of witness statements. The Applicants were rarely able to draft proper witness statements and had to rely on the individual witnesses to draft something themselves (usually by hand). This inevitably meant that the witness statements were not full and did not cover all relevant matters. However, the Applicants were not in a position to review all the statements, expand/correct them and communicate with the witnesses before and/or during trial. This had a profound effect on numerous occasions because the trial judge often refused to allow the Applicants’ witnesses to develop or expand upon their witness statements. As a direct result, even where the Applicants were able to get witnesses to court, they were not able to adduce all relevant evidence from them.

    Publication

    1. The applicants further submit that their rights to a fair trial were denied as a result of the decision of Bell J to allow McDonald’s to amend their Statement of Claim part way through the trial and change the evidence the Applicants had to meet, several years after the alleged events.

    Amendment of Claim part way through trial

    1. Prior to McDonald’s amendment of their Statement of Claim in April 1996 the earliest alleged date of publication was 2nd October 1989. The effect of the domestic Courts allowing McDonald’s to extend their claim back to 21st September 1987, some 8-9 years later was to deny the Applicants their right to a fair trial. It should be noted that the domestic limitation period for defamation proceedings was 3 years (reduced to 1 year by the Defamation Act 1996). Domestic law was circumvented since although Bell J accepted that the amendment was "well outside the limitation period of three years" [See Bell J ruling 17.4.96, Appx 52 p12E] he acceded to McDonald’s assertion that the new claims "would be deemed to have been commenced on the same date as the original action" [Appx 52 p13A]
    2. The decision to allow the amendment caused unfairness for the following reasons
    1. in 1990 the applicants had asked for details of the case against them and McDonald’s had specified in reply that they relied only on the specific dates pleaded (see earlier)
    2. the Plaintiffs had specifically stated that it was not their case that the Applicants were authors or printers of the leaflet - but the new pleadings now alleged that.
    3. the new pleadings were wholly unspecific, the Applicants were entitled to know who had allegedly received the leaflets, where and when, and how they were allegedly responsible for publication, so that they could answer the case against them.
    4. Such a large addition to the scope of the publication case raised particular problems for the Applicants, occurring as it did part way through the trial when they were already overworked preparing for each day’s hearing.
    5. The refusal of Bell J to grant the applicants request for an adjournment for further preparation time compounded the unfairness to the applicants of allowing the Plaintiffs to amend their Claim in such a fundamental way 6 years after the writs were served, when the trial had been underway for almost 2 years, and the
    1. The applicants submit that their right to a fair trial was in fact prejudiced by the amendment allowed since they were then required to give evidence about the period between Sept 1987 and Oct 1989, which previously had not been part of the case and therefore they had not considered or prepared evidence on. The requirement to remember events some 7-9 years later was a tall order. A number of adverse findings were made against the applicants, particularly Ms Steel, on the basis that they could not recall some of the events, and these findings were used in a wider context to discredit other testimony. This was despite the fact that McDonald’s had no evidence to call regarding the applicants activites prior to 16th October 1989, and were relying solely on the ‘Haringey Affidavit’. For example the Court of Appeal stated [p79G-80C];
    2. "As for the Anti-McDonald's Fayre in October 1988, the criticism here arises in relation to the judge's finding that both appellants attended it and that Ms.Steel helped while there. There was no direct evidence of their presence, and in the course of his judgment on this the judge referred to the fact that no reason had been put forward for either of them not to have attended. Hence the argument that he was reversing the burden of proof.

      However, that reference by the judge once again needs to be seen in context. In relation to Ms. Steel, the relevant paragraph reads as follows:

      "Ms Steel said that it was possible that she went along to the 1988 fayre, but she would not agree that it was likely. She said that she certainly would not have had anything to do with organising it. She was attending London Greenpeace meetings by this time. The fayre was a high point of the group's year and she shared its anti-McDonald's aims. She did not put forward any reason for not attending. Whether or not she took part in advance organising, I am satisfied, to the standard of probability required, that she attended the fayre and helped when she was there. I consider that her refusal to accept the obvious likelihood that she attended the fayre was evasive."

      It can be seen that the reference to her not putting forward any reason for non-attendance was merely one factor taken into consideration in the judge's reasoning, along with her active involvement in the group by then and the importance of the Fayre in the group's activities. Seen in that light, the judge's approach is not open to any valid criticism, nor is the finding which he reached."

      [Emphasis added by applicants.]

    3. The Applicants submit that the domestic courts failed to weigh any claimed benefit to McDonald’s against the severe disadvantages to the applicants of allowing in the amendment so many years after the event, and that it cannot be considered proportionate or ‘necessary in a democratic society’ for a plaintiff to be allowed to amend their claim in this way to ‘protect their reputation’ some nine years after the events.
    4. The Applicants submit that it is a basic tenet of a fair trial that a Defendant should know in advance the case they have to meet. They submit that in a number of respects, including the Amendment of the Plaintiff’s Claim part way through the trial (as set out earlier), and in the radical changing of evidence to be called, they were denied this right.
    5. Another example in relation to the only incident in the entire case where McDonald’s alleged either of the applicants (Ms Steel only) directly distributed the leaflet complained of (on 16th October 1989) Bell J states as part of his findings against Ms Steel, on p32;
    6. "Mr Nicholson was particularly interested in what Ms Steel was doing. He saw her pick up some of the leaflets and hand them to other women who were moving off with them. Ms Steel then moved away towards the main road, carrying some of the leaflets. He saw her handing the leaflets to passers-by."

    7. However, Mr Nicholson’s original witness statement dated June 1993 made no mention of the claim that he was particularly interested in what Ms Steel was doing, nor that he saw her pick up some leaflets and hand them to other women, it is notable that these claims were only made for the first time in his supplementary statement made on 9th May 1996 (almost 7 years after the event), after Terry Carroll, McDonald’s other witness regarding this event had finished his evidence, and less than a week before Mr Nicholson was due to give evidence. The original statement simply said that Mr Nicholson claimed to have seen Ms Steel handing out ‘leaflets’, it didn’t specify that these were the leaflets complained of, nor even whether they were anti-McDonald’s leaflets [it should be noted that inspection of the originals of the leaflets disclosed as having been obtained at the protest outside the head office, revealed that there were in fact some leaflets which did not relate to McDonald’s at all, but which had nonetheless been handed out at the picket]. The applicants objected to this radical change of evidence when the statement was first introduced, but they were overuled.

    Delay

    1. McDonald’s case was that the company first became aware of leaflet complained of in 1986. Proceedings were not launched against the applicants until September 1990, and at this stage covered only the period from October 1989 to September 1990. As stated earlier McDonald’s then extended their claim in 1996 to allege responsibility for publication from September 1987 to September 1990.
    2. The applicants submit that in the light of the delay in the case, it was impossible for the defendants to gather a substantial amount of the material relevant to the 'publication' issue and other issues (regarding research, and to contact witnesses from the relevant years etc).
    3. There was delay on proceeding with their claim that the leaflet was distributed on 16th October 1989 outside their Head Office, followed by a delay were the Plaintiffs had infiltrated London Greenpeace in October 1989 and yet did not bring a case until a year later. If McDonald’s had instead brought the action by the end of 1989 it would have meant it was easier to gather evidence and track specific witnesses to counter the McDonald’s assertions.
    4. The delay of four years from the publication of the document by London Greenpeace before the writs were served and then the additional delay in the Plaintiffs applying for pre-trial directions meant that it was impossible for the defendants to gather a substantial amount of the material relevant to the 'publication' issue and other issues such as employment and packaging.
    5. Despite being represented by a full team of lawyers McDonald’s were allowed to cause delay to proceedings by their continued failure to provide further and better particulars of their case and refusal to comply with their obligations to disclose documents to the applicants under the discovery procedure. The details of McDonald’s case on publication were not given to the applicants until service of witness statements in 1993 and on dates subsequent to this when McDonald’s drastically extended the claims they were making against the applicants.
    6. In the light of the above, it was impossible due to the passage of time for the Defendants to gather substantial amounts of material relevant to the publication issue, and other issues, regarding research, contacting witnesses for the relevant years, and also, to obtain discovery from the Plaintiffs related to the relevant time. Such delay meant that the Defendants were put at great disadvantage. This is particularly noteworthy in that due to the passage of time, Mr Justice Bell decided to treat the notes of the private investigators who infiltrated London Greenpeace, as more accurate than the recollection of the individuals who attended these meetings for genuine reasons. It cannot be right that Plaintiff’s should be in a position to be able to manipulate the outcome of proceedings by delaying their prosecution and specifics of claim and thereby gain the acceptance of their own evidence as the only reliable indicator of events, and effectively prevent the Defendants from mounting a successful Defence.

    Reversal of burden of proof/acceptable assessment of facts

    1. In his judgement Bell J frequently and wrongly reversed the burden of proof on the publication issued onto the applicants, or failed to make an acceptable assessment of the relevant facts. For example; at p58 the judge found that Ms Steel must have answered letters on occasions by sending out copies of the leaflet complained of. It is submitted by the Appellants that there was not proper basis on which he could do this. There was no evidence from any witness that Ms Steel had answered any letters relating to McDonald’s or enclosing the factsheet complained of. Therefore there was no basis for Bell J to say he would expect HS to join in answering such letters.

    Failure to require labelled exhibits of leaflets in court when there were several different versions, only one of which was subject of libel action.

    1. The applicants submit that the failure by the Courts to require the Plaintiffs to produce labelled exhibits of leaflets in court when there were several different versions (including the Veggies one which had an identical front cover), only one of which was subject of libel action, lead to a very real risk and in fact result of wrong conclusions being drawn. For example throughout the notes of the private investigators reference is made to "What’s wrong with McDonald’s?" leaflets, but in their witness statements this has been translated into ‘the leaflet complained of’, despite the fact there are several different versions with this title. On being questioned, on a number of occasions the witnesses admitted that in fact they didn’t know which version of the leaflet their notes referred to, or that it referred to the A5 version. However other witnesses refused to admit this. Had the Plaintiffs been required to produce the dated leaflets in court, this could easily have been clarified.

    Spies remaining in group after service of writs

    1. McDonald’s hired private investigators to infiltrate London Greenpeace meetings and events from October 1989 until some time during 1991. The Applicants case was that one private investigator remained until May 1991, the Plaintiffs claimed that they were not employed after January 1991. In either scenario this means that agents remained in London Greenpeace after the writs had been served on the Applicants. During her evidence Ms Steel testified that one of the agents had asked her questions about how they intended to fight the case. The Applicants complained that this was an abuse of process.
    2. The Court of Appeal in its judgement stated that [p61A]
    3. "We are bound to say that any litigant who keeps an agent in the opposing side's camp after litigation has been started runs a grave risk of the Court regarding this as improper. It could in certain circumstances lead to such an agent obtaining and relaying information about the litigation which ought properly to be regarded as privileged. The court will look closely at any evidence of such activities to ensure that no abuse has taken place. Nonetheless, having scrutinised with care what happened in the present case, we are satisfied that neither Mr Bishop nor Ms Hooker was kept on undercover in order to gain any forensic advantage for the respondents and that no such advantage was in fact obtained. In those circumstances there was no misconduct on the respondents' part. We reject the submission that these events can be seen as amounting or contributing to an abuse of process."

    4. The Applicants submit that there was no proper basis on which such a finding could be made since the Courts had refused to order the Plaintiffs to disclose the notes made by the private investigators during this period, therefore the relevant evidence from the time, which would have shown what information was passed to McDonald’s in relation to the libel case, was not available to the court, and they contend that the domestic courts have failed to ensure their rights to a fair trial.

    Discovery of spies notes

    1. The applicants submit that domestic courts failed to ensure that the defendants received a fair trial by requiring equal access to records of meetings kept by the private investigators and that this presented added disadvantages given the distance in time between the events and the period of the trial in which they were dealt with. During the period from October 1989 to at least January 1991 (the Applicants believe until April/May 1991), McDonald’s hired private investigators to infiltrate London Greenpeace for the stated purpose of finding out who was behind the anti McDonald’s campaign and the publication of the leaflet complained of in this action [Appx 53]. In June 1993 McDonald’s served witness statements from some of the private investigators, some of these statement referred to notes having been made of those meetings. A few of these notes were disclosed at the time. The applicants wrote to McDonald’s requesting copies of all the notes taken by spies. McDonald’s replied stating that there were no further notes to be disclosed [See Appx 54].
    2. However, further notes were disclosed during the course of the trial, and in particular when McDonald’s served further statements from the private investigators in 1996. However it is clear from the investigators notes that there were other dates when they attended. Even for those notes that were disclosed a large number of extracts have been blanked out and the applicants have not been permitted to see them [Appx 55].
    3. No sanctions were imposed on McDonald’s for withholding the notes despite the added disadvantages this delay caused to the applicants. The applicants applied to Bell J for an order that McDonald’s disclose all the notes, however, although he ordered further notes to be disclosed he allowed McDonald’s to withold notes for some dates and blank out parts of those dates which they did disclose. [See Appx 56. Bell J 17.6.96].
    4. The applicants submit that where a party undertakes surveillance and infiltration in order to obtain information to bring proceedings or use in court ALL notes should be disclosed since they have all come into being for the purpose of the legal action and therefore equality of arms demands their disclosure to the other party, as their ‘lack of relevant information’ could be used to point to a lack of involvement by the defendants. Mere statements by defendants to that effect do not have the same Impact on a judge as reading a series of reports which show no involvement by the defendants.
    5. The applicants note that in criminal trials the prosecution is required to make full discovery, and comment that although this was a civil case the penalties imposed on them were considerably higher than in many criminal cases.
    6. By not ordering disclosure Bell J had no concept of how many meetings or events were attended by private investigators at which there was no discussion of McDonald’s. This was relevant to the defendants defence that the anti-McDonald’s campaign was just one of a number of campaigns run by London Greenpeace and that they had no real involvement in it and were attending London Greenpeace for other reasons. [see also CoA p65 & 76top]
    7. As a result of other proceedings [Steel & Morris vs Commissioner for Met] the Applicants gained discovery of a further report made for McDonald’s by Bishop’s Investigation Agency on 30th July 1990 (during the period of infiltration of London Greenpeace) [See Appx 9]. This stated in one part "Morris has attended Greenpeace meetings but is not an active organiser". This report was not disclosed by McDonald’s during the libel action. The applicants submit it is an example of a document which could have assisted Mr Morris by providing support for his case that he was not really involved with London Greenpeace at times that McDonald’s claimed he was, let alone the anti-McDonald’s campaign.

    VIOLATION OF ARTICLE 8

    1. 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.

    VIOLATION OF ARTICLE 11

    1. Article 11 provides;
    2. "1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

      2.No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police or of the administration of the State."

    General principles

    1. In Ezelin v France [26 April 1991 Application no 11800/85. 14 E.H.R.R. 362] the court held;
    2. "The applicant, an avocat, was reprimanded under professional rules of conduct by the French Bar Council for taking part in a demonstration against two judgements during which graffiti were daubed on buildings and abuse hurled at the judiciary. The applicant was not found to be one of the graffiti artists, but he did not dissociate himself from the demonstration once the graffiti-writing and abuse began. The Court held that there had been a violation of Article 11."

    3. Also held (p362):
    4. "(b) A restriction on the freedom of expression may be constituted by subsequent punitive measures
      (e)To be necessary in a democratic society, the interference must be proportionate to its aims, as listed in Article 11 (2). This means that a balance must be struck between such aims and the special and very important rights of free expression and freedom of peaceful assembly. It is therefore not ‘necessary’ in a democratic society to restrict those freedoms in any way unless the person has committed a reprehensible act when exercising his rights."

    5. In their closing submissions Counsel for McDonald’s set out their conclusions on the basis of their claim against the applicants [See Appx 57], these were;
      1. HS is liable for publication on 16.10.89
      2. DM is liable for all publications since 20th Sept 1987 because he produced the libel
      3. In any event, both are liable for all publications which have occurred as a consequence of their collective activities as leading or core, members of LGP (in HS’s case, this would mean that she was probably not liable for publications in the last 3 months of 1987, since on the evidence, she did not become a full-time member of LGP until the beginning of 1988)
    1. This demonstrates clearly, that with the exception of the alleged distribution by Ms Steel on 16.10.89, and the alleged ‘production’ by Mr Morris on the basis of the ‘Haringey Affidavit’, that the applicants liability for publication lies on the basis of involvement in London Greenpeace.
    2. The applicants submit that Bell J made a number of findings against them of liability for publication merely as a result of their attendance at meetings or events, the following are examples;
    3. "I accept that there was no formal membership of London Greenpeace as there is with most clubs or associations. It was clear from the evidence of the Plaintiffs' witnesses who attended its meetings that there was no formal "chair". There was never any voting or show of hands. No one had formal authority over anyone else. Not everyone who attended meetings had an equal interest in the subjects which were discussed." [Jp14]

    4. However he then went on to say
    5. "Whatever a number of people's ideas may be about lack of authority or formality, they must organise themselves to work together, to act collectively, if they are to be effective in achieving their aims. People acting collectively and effectively under a particular name are accurately described in ordinary English as the "members" of a "group", and in my view those who attended London Greenpeace meetings or events with the intention of actively supporting joint aims which they believed in are rightly described as "members" of the London Greenpeace "group". Moreover, in my view, membership of the group in that sense at any particular time is some evidence of participation in the activities of other "members" of the "group" at the time. One still has to look for evidence for or against actual participation in any particular activity, such as publication of a leaflet like the one complained of, or involvement in a campaign which in turn involves publication of a leaflet; but if a group appears to be promoting a particular campaign by a particular means, it may be an easy inference that those who attend its meetings or events or contribute to them from a distance are encouraging campaigning by that means, unless there is evidence to the contrary such as evidence of an altogether different motive for being there." [Jp15].

    6. The applicants note that there was in fact no evidence that the individuals in the group shared any common purpose beyond a loose aim of wanting to see a society without oppression and exploitation of people, animals and the environment.
    7. Bell J also continued;
    8. "Taking all this with the evidence which I accept in relation to the 16th October,1989, demonstration, I am satisfied that copies of the leaflet complained of were available for collection from the London Greenpeace stall, at the fayre on the 21st October,1989, as they were the year before, despite Mr Pocklington's hesitation on the point when giving evidence in 1966. It was London Greenpeace's anti-McDonald's fayre and the leaflet complained of was the London Greenpeace leaflet with the most anti-McDonald's material.

      I am also satisfied that Ms Steel and Mr Morris who both attended the fayre, must have known of and concurred in the publication of the leaflet complained of, at the fayre. I think that Ms Steel tried to play down her involvement in the fayre, not wanting to accept responsibility for the distribution of the leaflet complained of, at the fayre. " [Jp42]

      "I have already referred to the informality of meetings and the fact that no notes were taken and no one in London Greenpeace was in a position of formal authority. Ms Steel and Mr Morris argued that since the enquiry agents' investigations and evidence concentrated on references to McDonald's and to Ms Steel and Mr Morris, they gave an impression that those who attended London Greenpeace meetings, particularly Ms Steel and Mr Morris, were more interested in McDonald's than they really were. They had many other interests, they said.

      I accept that those attending London Greenpeace meetings had other interests. It may be that by 1990 Ms Steel was personally more focussed on what she saw as the malign influence of the International Monetary Fund and the World Bank, among other matters, and Mr Morris on the Poll Tax and state boarders, among other matters. It was clear from the enquiry agents' evidence that there were meetings at which McDonald's was mentioned only in passing, or not at all.

      On the other hand Ms Steel and Mr Morris were very much part of London Greenpeace in my view. Ms Steel from her regular attendance at meetings and Mr Morris from his occasional attendance allied to his longstanding participation in its affairs; and the anti-McDonald's campaign was a prominent objective of London Greenpeace. It may have simmered at a low level between the twin highlights each October, the World Day, with its demonstrations, including the one at McDonald's head office, and the annual fayre, but it was sustained by the answering of queries and the drumming up of interest in World Day and the fayre, as the enquiry agents evidence showed in relation to 1990. I am satisfied that the situation must have been the same in 1988 and 1989, all after the limitation date in September,1987.

      Ms Steel and Mr Morris also stressed the defence evidence that the leaflet complained of was in short supply, so far as London Greenpeace was concerned, after the beginning of 1987, and that it had almost run out by the end of 1989. The terms of the Big Mac Attack leaflet and a similar Anti-McDonald's Campaign 1990 leaflet provide some support for this as does some of the enquiry agents' evidence. I think that stocks of the leaflet complained of were low from time to time. However, I am satisfied that it was in good enough supply to be handed out in the street, perhaps exceptionally, at the head office demonstrations in October,1987, 1988 and 1989. It was available in significant numbers for collection at the October,1988, Anti-McDonald's Fayre and at the 1989 fayre. It was in sufficient supply to be sent out with the August,1989, press release, and to those who sent stamped address envelopes in response to the 1989 Big Mac Attack and 1990 Campaign leaflets, and to those who wrote to London Greenpeace asking for more information about McDonald's as late as 1990. It could be photocopied, and London Greenpeace was not always short of funds. I am satisfied that between September,1987, and September,1990, the London Greenpeace group always had enough copies of the "famous factsheet" for its big events and to answer enquiries and I reject the defence evidence to the contrary."[Jp73-75]

      I have no doubt that Mr Morris published the leaflet complained of between 21st September,1987, and 20th September,1990, and that Ms Steel published it between early 1988 and 20th September,1990. My particular findings are as follows.

      At all material times Greenpeace (London) or London Greenpeace was a small group of people who worked together with the common aim of campaigning against McDonald's. Members of the group had other interests, but McDonald's remained an important target for collective attack.

      Both Ms Steel and Mr Morris were core members of that small group and they were active in its anti-McDonald's campaign up to the commencement of the proceedings on the 20th September, 1990: Mr Morris from the beginning of the campaign in about 1984, and Ms Steel from early 1988 at the latest.

      A major feature of the group's anti-McDonald's campaign was the publication, including the publication in England and Wales, of the leaflet complained of, the London Greenpeace "factsheet". Publication was achieved by handing the leaflet out at demonstrations, by putting it out for collection at meetings and events and by sending it through the post in answer to requests for information. Publication was indirectly achieved by encouraging other groups to distribute it.

      Whether or not a decision was made in 1987 to use the single sheet, A5 leaflet to hand out in the street rather than the leaflet complained of, exceptions were made for the annual October demonstrations outside McDonald's head office in 1987, 1988 and 1989. The leaflet was also available for collection at the October Anti-McDonald's Fayres in 1988 and 1989 and at some of the meetings at Endsleigh Street and Caledonian Road. It was sent in reply to postal queries about McDonald's and in response to requests from other groups as each October World Day approached. It was sent to the mass media under cover of the August,1988, press release. However low stocks of the leaflet complained of, the group's "famous factsheet", may have fallen from time to time, there were always sufficient copies for those publications, whether the copies came from the initial print run or from reprints or photocopies.

      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. He must have done so with the intention that copies should be published whenever and wherever possible in the future which included the period from the 21st September, 1987, to the 20th September, 1990. There is no evidence that Mr Morris ever tried to arrest the publication which he had helped set in train. On the contrary, after the initial production of the leaflet by members of the group, Mr Morris remained a member of the group and encouraged its anti-McDonald's campaign which included the publication and distribution of the leaflet, until the commencement of proceedings on the 20th September,1990. Although his "hands-on" participation in London Greenpeace activities may have grown less as time went by, particularly for some time after August, 1989, because of his interest in other matters and a family misfortune, he remained interested in McDonald's as a multinational target, and he was active in anti-McDonald's activities.

      He probably attended to help at the Anti-McDonald's Fayre in October,1988, where copies of the leaflet complained of were collected by members of the public from the London Greenpeace stall. He attended to help the Anti-McDonald's Fayre in October,1989, when copies of the leaflet complained of were collected by members of the public from the London Greenpeace stall. He promoted London Greenpeace at the debate on the 26th October,1989. He took part in the meeting on the 25th January, 1990, to plan the future of the group. On the 1st March,1990, he took part in a joint letter answering exercise which probably involved publication of the leaflet complained of. He spoke in terms which indicated his support for the anti-McDonald's campaign. He took a very active part in the meeting on the 26th April,1990, when anti-McDonald's activity was discussed and copies of the leaflet complained of and copies of the aims and objectives leaflet boasting of the success of the anti-McDonald's campaign and the leaflet complained of, were collected. He played an active part in meetings on the 19th July and 2nd August,1990. On the latter occasion he encouraged Mr Bishop to answer a letter with the aims and objectives leaflet. He helped with the group's mailout on the 20th September,1990. He must have known of and concurred in the anti-McDonald's publicity for the October,1990, World Day and fayre, which was prepared in the summer of 1990.

      My conclusion is that, jointly with others, Mr Morris caused, procured, authorised, concurred in and approved all publications of the leaflet complained of in England and Wales, as well as elsewhere, between the 21st September,1987, and the 20th September,1990.

      The exact extent of the publication of the leaflet, for which Mr Morris shared responsibility, is impossible to specify precisely, but it must have involved several thousand copies being published worldwide, both directly and consequentially by those to whom it was originally handed or sent handing or copying it on, including several thousand copies within England and Wales.

      Mr Gravett thought that 2,000 or 3,000 copies of the leaflet complained of were printed in 1987, presumably in addition to a similar print run in 1986, and in my view these must have been directly distributed and led to consequential publication. All in all, the total distribution direct and indirect in England and Wales between the 21st September,1990, and the 20th September,1991, for which Mr Morris was jointly responsible with others must have been several thousand, if not more.

      Ms Steel did not participate in the initial production of the leaflet and it has not been proved that she took part in London Greenpeace's anti-McDonald's activities in the Autumn of 1987. But by her participation in the group's activities, sharing its anti-McDonald's aims, from early 1988, Miss Steel jointly with others including Mr Morris, caused, procured, authorised, concurred in and approved all publications of the leaflet complained of in England and Wales, as well as elsewhere, between that time and the 20th September,1990.

      Ms Steel's involvement in the anti-McDonald's campaign, involving distribution of the leaflet, was considerable. She attended to help at the Anti-McDonald's Fayre in October,1988, when copies of the leaflet complained of were collected by members of the public from the London Greenpeace stall. She took part in a team effort to distribute copies of the leaflet complained of outside McDonald's head office on the 16th October,1989. She attended to help at the Anti-McDonald's Fayre a few days later when copies of the leaflet complained of were collected by members of the public from the London Greenpeace stall.

      She took part in the 25th January,l990, meeting to plan the future of the group and she took part in a large number of meetings through that year when the anti-McDonald s campaign was discussed and plans were made to publicise World Day and the group s fayre in October,l989. She was a signatory of the group s building society account which demonstrated her place at the heart of its affairs. She answered letters on the 7th June,l990, and she must have done so on other occasions. Some of the answers must have contained the leaflet complained of. She produced "Behind the Arches" on the 13th September,l990, and she helped with the group s mail out on the 20th September. She must have known of and concurred in the anti-McDonald s publicity for the October,l990, World Day and fayre, prepared in the Summer of l990.

      Ms Steel s responsibility for publication of the leaflet in England and Wales coincided with that of Mr Morris from early l988, but she has not been shown to be responsible for publication of copies of the leaflet before that." [Jp 76-79]

      None of these findings were dismissed by the Court of Appeal

    SUBMISSION RE ARTICLE 11

    1. The Applicants submit that the Judge’s findings, upheld by the Court of Appeal, of liability for publication on the basis of attendance at fayres or protests, involvement in the anti-McDonald’s campaign or involvement in London Greenpeace, constitute an interference with their rights under Article 11. In order to avoid liability for publication, and the substantial damages awarded as a result, the Applicants would have had to avoid participation in any protest, action and/or campaign against McDonald's, and indeed to avoid attending London Greenpeace meetings. These activities were not ‘prescribed by law’, nor the applicants submit, can there be a ‘pressing social need’ for anyone participating in a protest or campaign to be liable for any acts carried out by others involved in that campaign. The applicants place reliance on the Court’s approach in Ezelin v France (1991) 14 E.H.R.R. 362, p389 ;
    2. "53. The Court considers that the freedom to take part in a peaceful assembly - in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion."

      1. The Applicants submit that this applies with even greater force to the finding that involvement in London Greenpeace could make an individual responsible for publication. Clearly this could deter all sorts of people from getting involved in any political organisation on the grounds that they may, by getting involved, become responsible for any leaflet produced by that organisation, whether or not they actually took part in its production or distribution.

       

      VIOLATION OF ARTICLE 13

      1. The applicants contend that, before the Human Rights Act 1998 came into force, they had no effective means of raising and relying on their Convention rights before the national authorities. When they attempted to do so, they were met with the reply that the Convention was not (then) incorporated into English law and had no direct application. Since most areas of libel law have been long settled, there was simply no basis for raising the Article 10 and Article 6 issues set out in this complaint. Hence, the Applicants submit, there was no effective remedy for the violation of their Convention rights as required by Article 13 of the Convention.

       

      VIOLATION OF ARTICLE 14

      1. 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.

       

      Relevance of HS and DM v United Kingdom.

      1. As noted above, when the Applicants were initially refused legal aid, they 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)[Appx 58]. However, the Applicants contend that is had little, if any relevance to the present complaint. That is because:
      1. It was lodged at a very early stage of the proceedings and before trial. At that stage, counsel for McDonalds was predicting a 3-4 week trial; no-one contemplated a two and a half year trial and a prolonged appeal hearing. No assessment was made, nor could it have been , of the impact of the trial and its conclusion including the award of damages on the Applicants Article 10 and Article 6 rights.
      2. The first application was limited to the non-availability of legal aid . None of the other issues now complained of were raised. Therefore, there can be no question but that these issues are being raised for the first time.
      3. The significance of the lack of legal aid is now wholly different to its significance in 1993. That is because the Applicants now have an award against them of £40,000. In other words, the feared sanction has now been imposed and, in such circumstances, it is submitted it is appropriate for the European Court to examine whether the imposition of that penalty corresponds and is compatible with proper respect for the applicants' rights.

      STATEMENT RELATIVE TO ARTICLE 35 OF THE CONVENTION.

      1. The final decision was that of the Appeal Committee of the House of Lords, on 21 March 2000 to refuse the Applicants applications for permission to appeal from the decision of the Court of Appeal to the House of Lords.
      2. Other decisions:
      3. 31 March 1999: the Court of Appeal partly allowed the Applicants’ appeal against the order of Bell J.
      4. 6 August 1997: Bell J found for McDonald’s.
      5. There is no other appeal or remedy available to the Applicant which has not been used.

      V. OBJECT OF THE APPLICATION AND PROVISIONAL CLAIMS FOR JUST SATISFACTION.

      1. The Applicants seek:
      2. a declaration that their rights under articles 6, 8, 10, 11, 13 and 14 of the Convention have been violated.
      3. The Applicants also seek damages arising out of the violation of their rights, including:
      1. Just satisfaction
      2. all costs incurred in bringing this Application.
      3. costs in the domestic courts

      VI. STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS.

      1. The Applicants have not submitted the above complaints to any other procedure of international investigation or settlement.

      VII. LIST OF DOCUMENTS.

      1. The Applicants enclose the following documents:
      2. Leaflet entitled "What’s wrong with McDonald’s?"
        McDonald’s Press Releases and leaflets (subject of counterclaim)
        Judgment of Mr Justice Bell, 19th June 1997
        Judgment of Court of Appeal, 31st March 1999
        House of Lords refusal of leave to Appeal 21st March 2000
        Indexed file of further appendices

      VIII. DECLARATION AND SIGNATURE

      1. I hereby declare that, to the best of my knowledge and belief, the information I have given in the present application form is correct.

      Place: …………………………

      Date: ………………………….


      EUROPEAN COURT OF HUMAN RIGHTS

      AUTHORITY

      I, ……………………………………………………………

      (name and address of applicant)

      hereby authorise

      …………………………………………………………….

      (name and address of representative)

      to represent me in the proceedings before the European Court of Human Rights, and in any subsequent proceedings under the European Convention on Human Rights, concerning my application introduced under Article 34 of the Convention against the United Kingdom.

      ………………………….. ………………………….

      (place) (date)

      …………………………… ……………………………

      (applicant’s signature) (representative’s signature).


    Footnotes

    1 Legal Intimidation, Fiona Donson (2000), You and I Against McWorld, John Vidal, Guardian (9.3.96).

    2 CoA, transcript of judgment, p.3A-E.

    3 ibid., p.64C.

    4 ibid., p.66C-E.

    5 ibid., p.299A-B.

    6 CoA transcript of judgment, p.58D-F.

    7 CoA transcript of judgment, p.159E-F.

    8 ibid., p.3B-C.

    9 ibid., p6C-7G.

    10 ibid., p.8E-G.

    11 ibid., p.299G.

    12 You and I against McWorld, Guardian, 9.3.96 (John Vidal).

    13 ibid., p.167D-E.

    14 ibid., p.182G-183B.

    15 CoA, transcript of judgment, p.258A-F.

    16 Hulton v. Jones [1910] AC 20, per Lord Loreburn LC at pp.23-24.

    17 Tolstoy Miloslavsky v. UK (1995) 20 EHRR 442 at paras. 21 and 22.

    18 CoA transcript of judgment, p.25D-E.

    19 Boston v. Bagshaw [1966] 1 WLR 1126.

    20 ibid., p.30E.

    21 [1998] 3 WLR 862.

    22 [2000] EMLR 1.

    23 Cmnd. 5909, at pp.160-161.

    24 Bergens Tidende v. Norway (2000) Judgment of the Court, 2.5.2000.

    25 Hertel v. Switzerland (1998) Judgment of the Court, 25.8.98 (para.46).

    26 ibid., para.47.

    27 Barfod v. Denmark (1989) 13 E.H.R.R. 493, at para.29.

    28 Lingens v. Austria (1986) 8 E.H.R.R. 407, at para. 42.

    29 Ibid., at para.43.

    30 Thorgeirson v. Iceland (1992) 14 E.H.R.R. 843, at para.64.

    31 (1995) 21 EHRR 1 at para.38.

    32 (1999) 29 EHRR 125.

    33 Lingens (ibid), para.46.

    34 Thorgeirson v. Iceland (1992) 14 E.H.R.R. 843, at para.65.

    35 The defendant, Vladimir Matusevitch was a resident in Maryland, USA. The claimant, Telnikoff, sought to enforce judgment in the US courts.

    36 Transcript, p.20.

    37 Transcript, p.38.

    38 ibid., pp.46-47.

    39 Bell J p12

    40 ibid., p.129F-G.

    41 ibid., p.132C-E.

    42 ibid., p.146A-D.

    43 ibid., p.151A-B.

    44 ibid., pp.194-204.

    45 ibid., p.194F.

    46 ibid., p.195F-H.

    47 ibid., p.199D.

    48 ibid., p.200C-D.

    49 ibid., p.200G-201A.

    50 ibid., p.202F-203B.

    51 ibid., pp.205-254.

    52 ibid., p.234B.

    53 ibid., p.240F.

    54 ibid., p.241E-F.

    55 ibid., p.241G.

    56 ibid., p.242E.

    57 ibid., p.242G.

    58 CoA p82D-83E