The Hon. Mr Justice Bell
SUMMARY OF THE JUDGEMENT
The use of recycled paper
The parentheses, referring to recycling and litter, state: "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."
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. This charge is defamatory of both Plaintiffs.
Mr Morris's contended that the evidence showed that McDonald's used very little recycled paper before 1990 or 1991 which took us outside the period of relevant publication of the leaflet.
I disagree. On the evidence which I have heard and read I conclude that between 1987 and 1989 McDonald's paper in the U.S. contained a small but nevertheless significant proportion of recycled fibre, certainly more than a tiny percentage, although I cannot say what the proportions of post-industrial and post-consumer were then because the distinction was not generally perceived to be important. By 1990 McDonald's U.S. packaging contained a substantial proportion of recycled post-consumer waste.
The proportion of recycled paper in the U.K. was less clear because there was less information, but upon what I did hear and read I conclude that from the early 1980s McDonald's paper contained a small but nevertheless significant proportion of recycled fibre. I do not consider that the proportion of recycled fibre in the Second Plaintiff's paper can fairly be said to have been tiny at the time of relevant publication of the leaflet (September 1987, to September, 1990,), even though many paper items appear to have contained no recycled fibre at all. Paper carry bags, napkins and paper trays all of which featured significantly in the McDonald's system contained substantial proportions of recycled fibre from the early 1980s. In my JUDGEMENT, the recycled fibre in those items makes it impossible for me to hold that only a tiny percentage of the paper which U.K. McDonald's used during the 1980s was recycled paper.
There is no doubt that the proportion of McDonald's paper which is recycled has increased greatly from 1990 onwards in the U.S. and from 1991 onwards in the U.K. but this does not mean that the percentages of recycled paper were tiny before.
There was evidence that McDonald's publicity material in 1990 was misleading about some packaging in England actually being recycled when it was not, in fact. This deception does not, however, in my view, help the Plaintiffs to substantiate the specific defamatory charge of lying about the recycled content of McDonald's paper.
I find that the defamatory charge that the First and Second Plaintiffs are lying when they claim to use recycled paper is not justified, even in part. It is not true.
I have come to the conclusion that the leaflet's reference to litter is not, in law, relevant to the issues which I have to decide in the case. Even if it amounts to a defamatory charge of being to blame for litter, the Plaintiffs have not made it part of their case, and the Defendants can not rely upon it, if true, in justification of other, separate and distinct charges in the leaflet.
In any event, I am far from persuaded to the standard required that McDonald's, including either Plaintiff, is in ordinary good sense "to blame" or culpably responsible for litter which has left their restaurants as packaging in customers' hands. I do not consider that they can fairly be blamed for it just because they have provided disposable packaging. The Plaintiffs clearly feel some understandable civic obligation to clear up that which falls reasonably near to its restaurants.
My conclusion from the evidence which I accept is that McDonald's restaurant frontages have been kept clear of litter, but that the system of regular patrols to clear up litter rather further afield has often broken down. I do not, however, consider that failure to achieve their objective of more extensive clearance makes them culpably responsible for what is left on the streets away from the actual fronts of their stores, or responsible at all for items of their packaging which are dropped some munching or drinking distance away. In my JUDGEMENT the blame for all that lies firmly on the inconsiderate customer.