Day 233 - 26 03 96 - Page 47

 
 

                                                                  DAY 233
 
 
 
 
 
     1
     2   MR. RAMPTON:  This is one of my problems, I frankly admit.  If
     3        I felt that such documents had a purpose in the case beyond
     4        satisfying the Defendants' lust for sight of McDonald's
     5        documents and seeing whether they can get a case which they
     6        do not have, then I very much prefer not to argue what may
     7        be sterile points of law.  But I do not believe that I can
     8        properly answer your Lordship's question "yes", if the
     9        question is: would not they be entitled to have them for
    10        the purpose of defending themselves against false
    11        allegations made publicly?  I do not believe, as a matter
    12        of contract, that probably would be so.  I am certainly not
    13        willing to concede it, in any event, because it concedes an
    14        issue of principle which in this case is of some
    15        considerable importance.  Your Lordship may decide against
    16        me.  So be it.  It does not infringe in any way at all on
    17        my primary submission, which is that none of these
    18        documents has any useful purpose to play in this case, or
    19        any proper purpose, I should say, to play in this case, in
    20        the light of the state -- or I should say non-state -- of
    21        the Defendants' evidence on this document.
    22
    23        I do not think there is anything more I can say about
    24        that.  One is, I fear, to an extent speculating.  But
    25        your Lordship is driven, perhaps, to do that, because I
    26        believe in the first instance, on the question whether the
    27        documents should be listed as opposed to inspected or
    28        disclosed for inspection, the burden is on me to say, well,
    29        I do not have the power to call for these documents.
    30
    31   MR. JUSTICE BELL:  Yes.
    32
    33   MR. RAMPTON:  I think that is good law -- should it be thought
    34        likely that such documents do exist, as in some cases -----
    35
    36   MR. JUSTICE BELL:  I am interested in that.  I do not want to
    37        prolong the argument beyond its worth, but is that right --
    38        because you are only under an obligation under Order 24 to
    39        disclose documents which are in your power which relate to
    40        any matter in issue in the proceedings.
    41
    42   MR. RAMPTON:  I wish I had a White Book.
    43
    44   MR. JUSTICE BELL:  I think we can probably forget Rule 1, which
    45        is mutual discovery, because it does not add to Rule 2
    46        anyway, which puts an obligation upon a party to make and
    47        serve on any other party a list of the documents which are
    48        or have been in his possession, custody or power, relating
    49        to any matter in question between them in the action.
    50        I would have thought that it was only an obligation to list 
    51        documents which positively are in your power.  We have gone 
    52        on to an informal approach, really, under Rule 7 now. 
    53
    54   MR. RAMPTON:  Yes.  I know I am arguing against myself, but that
    55        is nothing new in this case.
    56
    57   MR. JUSTICE BELL:  No.  You are in a peculiar position because,
    58        however well the Defendants may argue the matter, you have
    59        to try and help me as well.
    60
 
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