Day 233 - 26 03 96 - Page 35
DAY 233
1
2 We could argue that interrogatories would be an alternative
3 form, if the documents have gone out of the possession of
4 the Plaintiff. But the knowledge in them is in the
5 possession, power -- if the knowledge in them is possessed
6 by any agent of the first or second party, then that would
7 be a way of tying down that knowledge. We hope it will not
8 come to that.
9
10 Mr. Rampton did say quite a lot of things which were
11 confusing the suppliers with the subsidiaries, and it is
12 clear that we are asking for the documents in the
13 possession, power and control of the Plaintiffs, including
14 the subsidiaries, because we accept -- well, we do not
15 accept the documents in the hand of suppliers are not in
16 their possession, power and control, but we know which way
17 the wind is blowing on that one, so -----
18
19 MR. JUSTICE BELL: It is the way the Court of Appeal and House
20 of Lords which -- I mean, as I understand the authorities,
21 the Lonrho and Shell cases, even though the holding
22 company -- that is the say, the First Plaintiff in this
23 case -- holds 100 per cent of the shares in the subsidiary,
24 documents which the subsidiary has are only in the power of
25 the holding company if it has an irresistible legal right
26 to demand them; and it does not matter, as I said in my
27 previous ruling, that the moment Mr. Cesca, or whoever on
28 behalf of the McDonald's Corporation, the moment he asks
29 the subsidiary for a copy of that document it would have
30 been provided; that does not mean that the document is in
31 the power of the First Plaintiff. As I said, it surprised
32 me when I first read that. But there we are.
33
34 MR. MORRIS: Yes. Well, we would argue on that that the
35 Plaintiffs should be ordered to pass on the relevant
36 documents that we have applied for that would have
37 satisfied you that are relevant, if they are in their
38 possession, power and control. Now, if the Plaintiffs want
39 to say:"We have been ordered to supply this document, let
40 us say, it is clearly in the hands of McDonald's
41 Costa Rica, for example, but here is the legal agreement
42 between McDonald's Costa Rica and McDonald's Corporation
43 and, as you can see, there is no indefeasible access to
44 documentation", that is fair enough, but it cannot possibly
45 be the case that a party applying for documents must be in
46 possession of a completely secret commercial licence
47 agreement between two parties, or whatever, before they can
48 ask for those documents.
49
50 So, the point is that it is up to the Plaintiffs to satisfy
51 the court that, despite everything that we have heard in
52 this case to the contrary, the subsidiaries or joint
53 venture partners, or whatever, of the McDonald's
54 Corporation suddenly are not under the control of that
55 body, or that there is no agreement for access to
56 documentation.
57
58 Coming on from that, Mr. Rampton did say that of course
59 they are bound by the specifications and they would have
60 the right of inspection related to specifications and the
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