Day 233 - 26 03 96 - Page 49
DAY 233
1 has particular documents in their possession, control or
2 power which relate to matters in issue and, therefore,
3 I want the court to order that they be produced", that they
4 be listed; and if we get listing because you have evidence
5 of the existence of the documents, what you want is -- you
6 do not even want its inspection of the original; you short
7 cut that as well; you want production of copies of them.
8 Then, first of all, there is no jurisdiction for me to
9 order that you have copies unless (a) there is sufficient
10 evidence that the documents exist which the other party has
11 not disclosed. You have got over that, subject to whether
12 they are relevant at all. "The document or documents
13 relate to matters in issue in the action". I will put that
14 on one side for the moment, but then (c), "There is
15 sufficient evidence that the document is in the possession,
16 custody or power of the other party. When it is
17 established that these three prerequisites for jurisdiction
18 do exist, the court has a discretion whether or not to
19 order disclosure".
20
21 MR. MORRIS: We would argue that, based on that, there is
22 sufficient evidence the documents are in the power of the
23 Plaintiffs on the grounds that, as has been stated, the
24 carrying out of the specifications, which McDonald's claims
25 are compulsory on their supply chain, would not be
26 enforceable without this possession, power or control over
27 documentation and Mr. Rampton has said as much, I think
28 that the relationship between the supplier and the
29 subsidiary of McDonald's is not likely to be any different
30 in terms of the documentation than the power between the
31 corporation and its subsidiary or joint venture partner, or
32 whatever.
33
34 Therefore, we believe that based upon the other things we
35 have heard there is sufficient evidence that the documents
36 are in the power of the parties in this case and unless the
37 parties -- we believe the documents should, therefore, be
38 ordered. If the parties then, if the Plaintiffs then come
39 up with a contract between the corporation and McDonald's
40 Costa Rica, whatever, you know, exempting their subsidiary
41 or joint venture partner, or whatever, from it, so be it.
42 But I think it has already been established that they have
43 the -- there is sufficient evidence on balance of
44 probabilities -- in fact, I would say it is inconceivable
45 that McDonald's Corporation does not have that power
46 because of their clear -- what is the word -- stated
47 position regards their specifications and their uniformity
48 of their specifications worldwide and their demand for that
49 uniformity.
50
51 So, on those grounds, we would ask that the documents be
52 ordered.
53
54 Of course, if you are minded not to order those documents
55 because of not being convinced that there is sufficient
56 evidence, then we would certainly apply for the contracts
57 they have between the corporation and those three
58 countries, if not four if we include Germany, which are
59 documents clearly in the possession of the corporation.
60 But I think there is sufficient evidence that they do have
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