Chief Justice Bell's 800 page judgement was handed down on Thursday 19th June 1997 after his presentation of the Summary - the whole judgement is presented here for your enjoyment.
2. The issue of publication of the leaflet.
The cause of action in libel in this case arises from the publication in England or Wales of written matter which is defamatory of the Plaintiffs to persons other than the Plaintiffs without the consent of the Plaintiffs and within the three year " limitation" period immediately preceding the commencement of the Plaintiff's action by issue of the writ. The writ was issued on the 20th September, 1990.
The claims of both Plaintiffs are specifically founded on the six page leaflet entitled "What's wrong with McDonald's? Everything they don't want you to know", to which I have already referred. I will call it the leaflet, where there is no risk of confusion, or the leaflet complained of, or "the factsheet" (because that is what Ms Steel and Mr Morris called it throughout the trial although the term "fact" sheet begs the main questions in the case), in order to distinguish it from other leaflets with similar contents and the same title, which have been in circulation at much the same time.
The first issue in the case is whether Ms Steel and Mr Morris published the leaflet complained of between the 21st September, 1987, and the 20th September, 1990.
As a matter of law, any person who causes or procures or authorises or concurs in or approves the publication of a libel is as liable for its publication as a person who physically hands it or sends it off to another. It is not necessary to have written or printed the defamatory material. All those jointly concerned in the commission of a tort (civil wrong) are jointly and severally liable for it, and this applies to libel as it does to any other tort.
The burden of proving publication by any Defendant lies on the Plaintiff.
In civil, non-criminal, libel proceedings the standard of proof in all matters is the preponderance of probability, usually referred to as the balance of probability. Certainty is not required, but both sides argued that as a matter of legal principle the degree of cogency of evidence required for proof varies from issue to issue according to the seriousness of the
allegation made and the potential consequences of the decision to the parties. Ms Steel argued that this principle required a higher standard than mere balance of probability before she or Mr Morris could properly be found to have published the leaflet complained of, with all the potential consequences so far as possible damages are concerned. I take the true principle from what Lord Nicholls of Birkenhead said in Re H and others (Minors)  A.C.563 at page 586 as follows:
The Plaintiffs' case was that at the material time Ms Steel and Mr Morris were members of, or involved in the activities of the group called Greenpeace (London) or London Greenpeace; that London Greenpeace ran an anti-McDonald's campaign which involved dissemination of the leaflet complained of; that Ms Steel and Mr Morris were directly involved in the furtherance of the campaign; indeed that they each took a leading role in the campaign; and that by virtue of their involvement, working in harness with other members of the group, they caused or procured or authorised or concurred in, or approved and were therefore party to the distribution and publication of the leaflet complained of wherever and whenever it was distributed and published between
the 21st September, 1987, and the 20th September, 1990. The Plaintiffs also alleged that Mr Morris took part in the initial production of the leaflet.
Both Ms Steel and Mr Morris denied that they published the leaflet complained of as alleged by the Plaintiffs. Ms Steel denied that she ever played any part in the production or distribution of the leaflet complained of. Her case was that she was not responsible for, nor was she involved in organising the anti-McDonald's campaign although she attended anti-McDonald's events and handed out shorter anti-McDonald's leaflets because the aims of the campaign were the same as her own.
Mr Morris's case was that he played no part in the production or distribution of the leaflet. His attendance at London Greenpeace meetings and events tailed off during the period from September, 1987, to September, 1990. He rarely attended meetings after August, 1989, and he was not really interested in McDonald's by 1990.
Alternatively, Ms Steel and Mr Morris contended that the Plaintiffs consented to the publication of the leaflet and of the words complained of contained in it. They said that the Plaintiffs' consent to publication was to be inferred from the instruction of enquiry agents to involve themselves in, and thereby encourage the activities of London Greenpeace, which involved publication of the leaflet complained of.
In analysing the evidence of publication of the leaflet by Ms Steel or Mr Morris, I will consider the first signs of an anti-McDonald's campaign by London Greenpeace, the history, format and general contents of the leaflet complained of, compared with certain similar leaflets which were in circulation at the material times and with which, it is suggested, it has been confused, the nature of the London Greenpeace group and Ms Steel's and Mr Morris's initial involvement with it. I will then go on to the Plaintiffs' attempts to discover who was personally responsible for publication of the leaflet. This will involve consideration of a number of events and meetings between 1987 and 1990.
The earliest London Greenpeace leaflet or poster, shown to me, advertised a day of protests against McDonald's on 19th
January, 1985. It appeares to have been produced sometime in late 1984. It criticised McDonald's alleged exploitation of employees and customers, the quality of its food, its slaughter of animals and destruction of Amazonian rainforests. It bore a cartoon showing a man or woman and a cow or steer, held in a burger, with the legends, "if the slaughterhouse does not get you" and "the junk food will!" in bubble-speak.
The leaflet complained of declares that it was produced by Greenpeace (London) for Worldwide Anti-McDonald's protests on United Nations 'World Food Day', October 16. The evidence of Mr Paul Gravett who was one of the original five Defendants to the proceedings, was that the McDonald's factsheet, as he called the leaflet complained of, was produced by a small group of people for World Day, 16th October, 1986. Mr Gravett said that the people involved in producing it were not known to him and they left London Greenpeace soon after its production.
The leaflet complained of first came into the hands of McDonald's executives in this country over a period of about a year after its production. At first sight it appears to be AS size (about 14cm across and 21cm deep) with a number of sides of print. In fact it is printed on both sides of one sheet of paper measuring 42cm by 21cm, with two vertical folds in the 42cm width to make a "fold-out" leaflet with six pages.
At the top of the front page is a banner headline: "What's wrong with McDonald's?" Beneath that headline appears a cartoon of the head and-shoulders of an overweight and evil-grinning man. He wears a cowboy hat. He has a dollar sign in the one eye which is visible. A cigar is stuck in the corner of his mouth. There is an "M" in the distinctive shape of McDonald's golden arches on the lapel of his coat. Burgers are printed on his tie. He holds a mask depicting a smiling Ronald McDonald, McDonald's clownish marketing and advertising character. The mask hides part of his face. He has a steers-head ring on the hand which holds the mask.
The subtitle to the cartoon, printed boldly at the bottom of the front page, although not as boldly as the headline at the top, reads: "Everything they don't want you to know."
When the leaflet is unfolded it presents three AS pages of text, with two columns a page, plus a small picture and a cartoon. Across the top of the three pages are spread twelve
McDonald's "M" arches: four per page. Printed across the arches are the twelve words: McDollars, McGreedy, McCancer, McMurder, McDisease, McProfits, McDeadly, McHunger, McRip-off, McTorture, McWasteful and McGarbage. I will refer to those pages as page 1, page 2 and page 3, reading from left to right.
When the unfolded leaflet is turned over it presents three more AN pages. Reading from the left, page 4 has two columns of text. Across the top of the page are printed four McDonald's "M" arches with the words: McDollars, McDeadly, McCancer and McMurder. So those four words appear twice at the top of the leaflet.
The distinctively shaped arches are a McDonald's trademark and the prefix "Mc" is used to associate the part of the concocted word which follows with McDonald' s. It is a common practice. McDonald's call their chicken pieces Chicken McNuggets". This case has been called "The McLibel Case" and Ms Steel and Mr Morris "The McLibel Two", in section of the media. So the words and arches across the top of pages 1 to 4 of the leaflet associate McDonald's with dollars, greed, cancer, murder, disease, profit, death, hunger, rip-offs, torture, waste and garbage.
Page 5, at the middle of the reverse of the leaflet when unfolded, is also the back page when it is in its unfolded state.
Finally, on the right hand side of the reverse of the leaflet when unfolded, the front page appears again, being the reverse of page 1, with the headline, evil man and Ronald McDonald mask cartoon and subtitle.
Page 1 starts with the statement: "This leaflet is asking you to think for a moment about what lies behind McDonald's clean, bright image. It's got a lot to hide." The page includes a headline: "What's the connection between McDonald's and starvation in the 'Third World'?" It has a picture of a woman holding a food bowl and a child. Page 2 includes the headlines: "Why is it wrong for McDonald's to destroy rainforests?" and "What's so unhealthy about McDonald's food?" Page 3 includes the headlines: "How do McDonald's deliberately exploit children?" and "In what way are McDonald's responsible for torture and murder?"
The cartoon of a person and a cow in a burger with "if the slaughterhouse doesn't get your and "the junk food will!" in bubble-speak, which featured in the leaflet or poster for the 19th January, 1985, appears at the foot of pages 2 and 3. Page 4 includes the headline: "What's it like working for McDonald's?"
Each of those headlines is followed by a section of related text. At the top of the back page 5 and stretching across the page there is a box containing the declaration to which I have already referred: "Produced by Greenpeace (London) for worldwide Anti- McDonald's protests on United Nations 'World Food Day', October 16.~ Beneath the box are two columns of text which start by urging the reader to "stop using McDonald's, Wimpey etc., and tell your friends exactly why". They go on to say that the influence of the individual counts and that there are many groups campaigning on the issues raised in the leaflet. They invite the reader to try vegan and vegetarian food.
At the bottom of the back page and stretching across the page there is a box headed: "Who made this leaflet?" The text in the box reads: " THE LONDON GREENPEACE GROUP has existed for many years as an independent group of activists with no involvement in any particular political party. The people - not ''members' - who come to the weekly open meetings share a concern for the oppression in our lives and the destruction of our environment. Many opposition movements are growing in strength -ecological, anti-war, animal liberation, and anarchist-libertarian movements - and continually learning from each other. We encourage people to think and act independently, without leaders, to try to understand the causes of oppression and to aim for its abolition through social revolution. This begins in our own lives, now."
Beneath that box, at the very foot of the back page, on early copies at least, appear the words "Postal address: Greenpeace (London), 5 Caledonian Road, London No", and "Open Meetings: 7.30pm every Thursday, 6 Endsleigh Street, London WC1", although during the period with which I am most concerned the meetings at Endsleigh Street were held once a month. A number of leaflets critical of McDonald's were in
circulation at the material time. Two of them bore particular similarities to the leaflet complained of, and it was suggested that witnesses for the Plaintiffs mistook publication of those leaflets for publication of the leaflet complained of.
One was produced by Veggies Limited and it was closely based on the leaflet complained of. Veggies Limited was formed in 1984 with the aims of providing and promoting foods with no animal ingredients and of informing members of the public about their health, their relationship with animals and the part that diet plays in the distribution of food worldwide.
The evidence of Mr Patrick Smith, one of Veggies' workers, which was not disputed so far as production of the Veggies leaflet was concerned, was that from 1985 Veggies supported and drew inspiration from London Greenpeace, and backed what it saw as the information campaign against McDonald' s.
In support of the campaign, Veggies reprinted the leaflet complained of, which Mr Smith called " the Greenpeace London factsheet", with an additional page entitled Hungry Children And Fat Cattle" and a further, additional back page with a very bold headline, "VEGGIES VEGGIES", across the top, followed by text about Veggies Limited. The text of the back page stretched across the page. The back page of the London Greenpeace leaflet was included as the penultimate page of the Veggies leaflet with minor alterations. There was no box referring to 'World Food Day' at the top of the penultimate page. The box referring to the London Greenpeace Group, and the postal address of London Greenpeace were included at the foot of the penultimate page, but the words "No copyright - use this to make your own leaflet" were printed beneath the postal address, instead of the reference to open meetings at Endsleigh Street. At the very bottom of the page appeared a bold legend: "At last: A healthy and humane alternative...Please read on... "
The 'rout page of the Veggies leaflet, with the distinctive headline, cartoon and subtitle, and the remainder of the contents of the Veggies leaflet were the same as those of the London Greenpeace leaflet complained of, and it presented as A5; but it had eight pages, of course, instead of the six pages of the London Greenpeace leaflet, and it was not a fold-out leaflet. It was printed on both sides of two more or less A4 sheets measuring about 30cm across the top and 21cm deep. Those two sheets were each folded in half and one was tucked loosely inside
the other. In other words the Veggies leaflet appeared as an unbound book of eight pages with the cartoon, headline and subtitle on the front, reference to London Greenpeace on the penultimate page, and the "Veggies Veggies" page on the back.
The Veggies leaflet must have been first published not long after the leaflet complained of first appeared, because on the 8th October, 1987, the First Plaintiff's English solicitors wrote to Veggies complaining of the allegations of murder and torture of animals and destruction of the rainforest, which were made in the Veggies leaflet. The solicitors demanded an apology and public correction in respect of the rainforest allegation.
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. Veggies' solicitors corresponded with the solicitors who were by now acting, it would appear, for both Plaintiffs. In May, 1988, Veggies agreed to have an apology to the Second Plaintiff published in the following terms:
we have been asked to retract the following allegations made in the leaflet "What's wrong with Big Mac?" :-
(1) that McDonalds are implicated in the destruction of Rain-forest, and
(2) that McDonalds are responsible for the torture and murder of animals.
Our response to this demand for retraction is as follows:
(1) we are now willing to apologise for having
repeated claims for which we have been unable to trace specific evidence concerning the connection with McDonalds and the raising of beef on former Rainforests;
(2) we are willing to concede that, by common usage, the words ''murder" and "torture" are not yet widely used in connection with the killing of animals (although by our standards this is indeed the case) and we regret any embarrassment suffered by McDonalds Hamburgers Limited due to this statement.'
Amendments were made to the Veggies leaflet in accordance with the correction and apology and in about 1990 or 1991 a "not so ozone friendly" box was added. However the Veggies leaflet retained its essential form of eight pages printed on both sides of two A4 sheets folded one inside the other, with the cartoon on the front and the Veggies Veggies back page, until Veggies obtained the use of an AS printer in 1993 or 1994, well after these proceedings were commenced. Thereafter their leaflet was printed on both sides of an A3 sheet and then folded twice so that it still presented as A5 with the familiar front page and a Veggies Veggies back page, although the text was different again in some respects.
Mr Smith accepted that if one wanted to distinguish the Veggies version of the factsheet from the leaflet complained of, during the period between 1987 and 1990, the most obvious distinction would be the back page which clearly contained information about Veggies rather than London Greenpeace. In my view the eight page form of the Veggies leaflet, printed on two sheets folded one inside the other, also made it readily distinguishable from the London Greenpeace factsheet, once a reader advanced beyond the identical front page.
Sometime after the London Greenpeace leaflet complained of first appeared, an A5 leaflet which bore a superficial resemblance to it was produced. It had the headline "What's wrong with McDonald's?" and a small copy of the same evil, grinning man cartoon on the front. It contained some of the same messages as the leaflet complained of, but in much shorter form, and it was printed on just two sides of a single A5 sheet. There was a significant amount of text on the front page, beneath the cartoon. Mr Gravett said that he wrote this shorter leaflet in the
Spring of 1987 because the handing out of the leaflet complained of on World Day of Action against McDonald's on the 16th October, 1986, and at demonstrations outside McDonald's branches in South London in early 1987, meant that very few copies were left. It was decided to reprint it, but it was costly to reprint so a decision was made not to hand it out in the street any more, and thereafter the shorter, single sheet A5 leaflet was always used on street demonstrations.
Greenpeace (London), or London Greenpeace, has always been an unincorporated body with no legal personality of its own. I heard no admissible evidence of its early history. Mr Mortises knowledge of it probably goes back further than most, but he did not give evidence. People who went to its meetings were told that it started in the early 1970s as a mainly pacifist organisation and as one of a number of groups in locations around the world, which adopted the name Greenpeace followed by the name of their city or area. It is not part of Greenpeace International which may have originated from one of the local groups elsewhere, but there was no admissible evidence about this and it does not matter for the purpose of deciding this case.
There was some dispute as to whether people who took part in activities in the name of Greenpeace (London) or London Greenpeace formed an identifiable group and as to whether either Ms Steel or Mr Morris was a "member" of the Greenpeace "group'' at any material time.
I have already referred to the box at the bottom of the last page of the leaflet complained of, which refers to "the London Greenpeace group" but says that it has no "members"
Ms Steel gave evidence that: "London Greenpeace is an informal, open, collective. Anyone can attend meetings and suggest campaigns or actions to organise or get involved in, and anybody who wanted to would join in the discussion and/or campaign." She said There was no obligation to get involved in any specific action or campaign, or whatever, discussion. Nobody had to get involved in anything. People could attend and do absolutely nothing if they wanted to. Some people would attend and get involved with some campaigns, others would attend and get involved with other campaigns."
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.
However, London Greenpeace was frequently described as a "group" in the literature put out in its name. Ms Steel described it as a "group" in her evidence, and she frequently referred to it as "the group". Mr Morris frequently referred to it as "the group" when questioning her. One of its leaflets, published just before October, 1989, and to which I will return, described it as " a very small group with only a dozen or so active members " A leaflet written by Mr Gravett, setting out its aims and objectives, declared that the group had no "leaders'' or "members"; but it also said "all our work is done collectively and you can join us by coming to our weekly meetings" . Another leaflet also written by Mr Gravett and produced by London Greenpeace for the Anti-McDonald's campaign 1990, described it as "the libertarian ecological collective" and "a very small group with only a dozen or so members " Ms Steel spoke Of " events that were organised by London Greenpeace". A variety of leaflets were printed in its name, presumably to the knowledge of those who continued to attend its meetings. It had sufficient identity to have a Building Society account of which Ms Steel was a signatory at the material time, together with Paul Gravett and another. Any one of the three could sign cheques.
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 "groups. 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.
Ms Steel's undisputed evidence was that she attended some London Greenpeace meetings in 1987 but that she really started attending meetings in 1988. She said that the leaflet complained of was already in circulation by then. She denied organising any anti-McDonald's protests prior to service of the writs in September, 1990, but when she was first informed of pickets at McDonald's stores and head office she decided to attend as it seemed that the aims of the anti-McDonald's campaign were consistent with her own: "a society without exploitation and oppression, and obviously a world without multinationals."
The origins of Mr Morris's involvement with London Greenpeace and its anti-McDonald's campaign are less clear, because he did not give evidence and his involvement began before Mr Gravett, the earliest "members to give evidence, started attending meetings in 1986. A witness statement made by Mr Morris was served on the Plaintiffs' solicitors in accordance with interlocutory directions. It says that Mr Morris had been involved with London Greenpeace since the early 1980s and that he remembered the launch of its anti-McDonald's campaign. Counsel for the Plaintiffs argued that I should treat that as an admission by Mr Morris against his interest, but I do not believe that I can properly treat Mr Morris's witness statement, served in accordance with a Court order, as an admission against interest or as evidence at all, when he has not given evidence. Argument on this point was never satisfactorily concluded, but the point is in my view academic because there was evidence which was not challenged, and which I accept, that in October, 1989, Mr Morris told an enquiry agent, Mr Pocklington, that off and on he had been involved with the London Greenpeace group for about ten years, and there was evidence that Mr Morris participated in the production of the leaflet complained of. He admitted as much in an affidavit which he swore in other proceedings on the 31st August, 1995. The purpose of the affidavit was to oppose the setting down of those other proceedings on the grounds that the trial of this action made it impossible for him to cope with them. A copy of the affidavit came into the hands of the solicitors for the Plaintiffs in this case, and it was used as the basis of a successful application to amend and expand the
Plaintiffs' pleaded case of publication of the leaflet complained of by both Ms Steel and Mr Morris.
Paragraph 2 of the affidavit sworn by Mr Morris reads: " In 1990 McDonald's Corporation issued a libel writ against myself and Ms Steel, a separate party. This arose from leaflets we had produced concerning, inter alia, the nutrition of McDonald's food, their employment policies and the effect of their operation on the environment."
Mr Morris did not give evidence to explain away the statement that he had produced copies of the leaflet in question, although he argued that it was clear that his solicitor had erroneously omitted the word "allegedly" before the word "produced", and that to him "produced meant the same as 'published. " Ms Steel gave evidence that she drew Mr Morris's attention to what was an obvious error when she first saw the affidavit and that he appeared to treat it as an error, but I do not consider that I can treat Mr Morris's self-serving statements to Ms Steel as admissible, exculpatory evidence so far as Mr Morris is concerned. When the application for leave to amend the Plaintiffs' pleaded case of publication was argued, Mr Morris produced a letter from the solicitor who prepared the affidavit as well as a further affidavit which he had sworn for the purpose of the application to amend, and in his final submissions Mr Morris relied upon this material to put an innocent explanation on the part of the earlier affidavit which I have quoted. However, Mr Morris's statements in Court, but outside the witness box, are not evidence, as he must have known from what I had said to him on a number of occasions when he made averments from his position in counsel's row in court: nor is the letter from his solicitor, or his subsequent affidavit, so far as the issue of publication is concerned.
The contents of paragraph 2 of the affidavit in the other proceedings against Mr Morris are admissible against Mr Morris as an admission against interest by him. They are not, of course, admissible against Ms Steel.
What, if any, weight should I attach to Mr Morris's apparent admission of production of the leaflet complained of? The points were made that affidavits prepared by solicitors may contain errors which go unnoticed by deponents, and that the Plaintiffs ultimately did not press their allegation that Ms Steel produced the leaflet and that she did not get involved with London
Greenpeace until after the leaflet complained of was produced. So Mr Morris's affidavit, it was said, contained a clear error so far as Ms Steel was concerned.
I am not impressed by those points. I believe that Mr Morris must have given the solicitor who drafted the affidavit cause to believe that he, and Ms Steel, produced the leaflet complained of, and I believe that he probably read the affidavit before he swore it. I believe that paragraph 2 would have jarred unless the truth was that he had produced copies of the leaflet complained of. He was not to know that it would come to light in these proceedings.
Mr Gravett described Mr Morris as the elder statesman of the group, and as someone who did "go on a bits, particularly about the history of the group, when he attended meetings.
Ms Steel said that she was aware that Mr Morris "had been in London Greenpeace going back several years." She said that from time to time at meetings Mr Morris talked about the history of the group and what it had beer up to in the early 1980s. I have already referred to what Mr Morris told Mr Pocklington about the length of his involvement with London Greenpeace. Another enquiry agent, Mr Bishop, gave evidence that at a meeting on the 2nd August, 1990, Mr Morris said that it just happened to be McDonald's that got chosen to represent multinationals at the beginning of the campaign. All this hangs together. So Mr Morris was conversant with the beginning of the anti-McDonald's campaign. It was clear from his conduct of the case that Mr Morris has a deep and longstanding antipathy to multinationals including McDonald's, and that he felt able to defend the allegations made in the leaflet complained of.
An enquiry agent, Mr Clare, gave evidence that at a meeting on the 1st March, 1990, Mr Morris said that he had helped to produce the leaflet for the anti-McDonald's campaign. I have serious reservations about Mr Clare's evidence generally, but that part of it accords with Mr Morris's affidavit and Mr Morris's longstanding involvement with London Greenpeace covering the period of production of the leaflet complained of.
I have not forgotten Mr Gravett's evidence that the people who produced the leaflet complained of were not known to him and that they left the London Greenpeace Group soon afterwards. Ms Steel and Ms Jane Laporte, another member of London Greenpeace,
said that they heard the same account at meetings. If Mr Gravett's account of the producers of the leaflet was reliable it would exclude Mr Morris, but even accepting that Mr Gravett was new to the group when the leaflet was produced and that the group was larger then, his professed ignorance of the identities of any of those who produced the leaflet and his account of them all leaving, apparently together, so soon after producing the factsheet in London Greenpeaces's name with its call for support for its aims, defies belief so far as I am concerned. Mr Gravett clearly shared those aims and within six months of World Food Day, 1986, Mr Gravett himself was, by his own account, producing the single sheet A5 leaflet, largely based on the leaflet complained of. I believe that Mr Gravett knows perfectly well who produced the leaflet if, indeed, he did not have a hand in its production himself; and I reject his evidence to the contrary.
Taking account of all those matters I am satisfied that Mr Morris's affidavit admission of producing the leaflet complained of is reliable. I am satisfied that he participated in its initial production in 1986 as part of an anti-McDonald's campaign. This finding has consequences so far as Mr Morris's responsibility for publication of the leaflet between the 21st September, 1987, and the 20th September, 1990, is concerned. I will return to them after considering events between those dates. The direct evidence in support of the Plaintiffs' case that Ms Steel and Mr Morris participated in the publication of the leaflet complained of between those dates was given by Mr Sid Nicholson and Mr Terry Carroll who are employed by the Second Plaintiff Restaurants Limited, and by four private investigators namely Mr Anthony Pocklington, Mr Brian Bishop, Mr Allan Clare and Mr Jack Russell.
Mr Nicholson and Mr Carroll gave evidence of a variety of matters including demonstrations outside the head office of the Second Plaintiff, most importantly on the 16th October, 1989.
The private investigators spoke of a number of meetings and activities of "members " of London Greenpeace between October, 1989, and the issue of the writ in September,1990. A solicitor, Mr Howse, gave evidence of publication of the leaflet in court on the 30th June, 1994, the third day of the trial.
Mr Nicholson who instructed the firms of private investigators, and Mr Preston, the President and Chief Executive Officer of the Second Plaintiff, and the private investigators gave evidence contesting the Defendants' suggestion that the Plaintiffs consented to the publication of the leaflet complained of.
As I have already indicated, Ms Steel gave evidence on the issue of publication, but Mr Morris did not give evidence at all. Between them they called Mr Gravett, Ms Laporte and Ms Frances Tiller, previously Davidson, who had acted as a private investigator into the activities of London Greenpeace but came to sympathise with the Defendants. I have already referred to Mr Patrick Smith of Veggies, who was also called by the Defendants.
In addition to the evidence of those witnesses a variety of pamphlets and posters were produced as examples of the alleged orchestration of an anti-McDonald's campaign by London Greenpeace.
Mr Nicholson was a police officer for thirty one years, retiring with the rank of Chief Superintendent.
He joined the Second Plaintiff in 1983 as its Security Manager. In 1984 he became manager of its Personnel Department. In 1985 he also took on the Franchise Department. In 1987 he was appointed Vice President with responsibility for running the Personnel, Franchising and Security Departments until 1992 when he became Ombudsman for the company after prolonged sick leave.
He gave evidence of the Second Plaintiff's employment practices as well as evidence relating to publication of the leaflet complained of, and he was McDonald's main presence in court for most of the trial, apart from lawyers.
I am well aware of the dangers of attaching too much weight to the demeanour of witnesses. It can be misleading, and I must assess the reliability of Mr Nicholson's evidence relating to the issue of publication in the light of all the relevant evidence on that issue, and indeed in the light of the impression which he made when giving evidence and being challenged on other issues in the case. Of course a witness may well give evidence which is reliable on one particular detail and unreliable on another, and this often happens with normally honest witnesses whose
recollections may be better on one point than another or depend upon true recollections here and reconstruction of varying dependability there, or where the pressure and temptation to be "less than frank" may be greater in one part of the case than another. This said, the general impression which Mr Nicholson made on me was that of an decent man, whose undoubted loyalty to his employer would not cause him to tell an active lie in the witness box. No doubt he is an accomplished witness as a result of his police service, but even allowing for that he was remarkably patient and generally consistent when repeatedly challenged during two very prolonged periods of cross-examination, and having observed him for so long in the witness box I would trust what he said unless other more cogent evidence, or some documentation, or the overwhelming probabilities of the situation showed him to be wrong.
Mr Nicholson gave evidence that from 1983 on, he was the main McDonald's person concerned with legal action and threatened legal action in this country over any publications criticising McDonald's, although he would consult Mr Paul Preston if a solicitor's letter was to be written.
He must have been aware that as early as 1984 a group of people calling itself Greenpeace (London) was disseminating anti-McDonald's material, probably that relating to the protests on the 19th January, 1985, because in December,1984, he asked the Plaintiffs' solicitors to write a letter to the postal address at 5 Caledonian Road.
A London Greenpeace leaflet, "Anti-McDonald's Campaign. 1988: Putting the Boot in Big Mace, to which I will return, referred to receiving a letter from McDonald's four years before and to replying that London Greenpeace would continue and that McDonald's could do what they liked because they could not sue London Greenpeace which was a free association. Ms Steel said that she heard something to the same effect, although there was no clear, admissible evidence that McDonald's letter was ever answered. In any event, it was not followed up by the Plaintiffs at the time.
Mr Nicholson thought that a copy of the actual leaflet complained of first came into his possession at a demonstration organised by Greenpeace (London) outside the head office of McDonald's U.K. in East Finchley on 16th October, 1987, although he may have received a copy through the post before that.
His account of the demonstration was that it involved about half a dozen people, some of them carrying placards. It took place in the afternoon. In his view it was a damp squid. He did not see anyone he recognised. That excludes Ms Steel and Mr Morris and Mr Gravett and Ms Laporte. Copies of the leaflet complained of were being handed out and he was handed a copy by a demonstrator as he walked through the demonstration.
Mr Nicholson remembered the 16th October, 1987, as a perfectly normal day. He remembered the "hurricane" in 1987 but he did not remember it being shortly before the demonstration.
The Defendants' case was that there was no demonstration on the 16th October, 1987, although one had been planned, and two particular points were made about the accuracy of Mr Nicholson's recollection. If the points were good they might shake the reliability of Mr Nicholson's evidence generally.
Firstly, his original written statement, the proof for which was taken in 1990, appeared to say that the 16th October, 1987, was the third year in succession that a demonstration had been held outside McDonald's U.K. head office. Mr Nicholson's explanation was that he meant that there had been three demonstrations by the time that his proof of evidence was taken, and that the demonstration on 15th October, 1987, was the first. I find this a perfectly acceptable explanation.
Secondly, the "hurricane" in fact occurred on the night of the 15th October, 1987, and Mr Gravett gave evidence that it caused damage and disruption in north London, which meant that the demonstration never took place.
Mr Gravett said that he produced a leaflet advertising pickets for the 16th October, 1987, World Day of Action, including one at head Office at 7.45am, but to the best of his knowledge there was no London Greenpeace picket at head office that day, because no one could get there. It was the day of the hurricane and he did not think there was transport early in the morning. The weather was simply too severe for people to get there. He did not go on a picket of head office. It was discussed the following week and no one said they had got to head office, so as far London Greenpeace was concerned there was no London Greenpeace demonstration that day.
Mr Carroll, also a retired Chief Superintendent of police,
who had joined McDonald's U.K. as Mr Nicholson's successor as Security Manager in 1984, had no useful recall of a head office demonstration in October, 1987, although he was aware of the existence of the leaflet complained of by then. He told me that at the time he was more concerned with the security of McDonald's fabric, which is consistent with a letter which he wrote asking a German marketing manager about attacks on McDonald's stores and, referring to the International Day of Action against McDonald's, to demonstrations at stores with some damage, but the hurricane stopping most of the problem. I do not find lack of reference to a head office demonstration significant. It is clear from the letter that Mr Carroll was most concerned with damage to buildings, and there was no damage to head office.
I was shown a copy of the leaflet advertising pickets for World Day of Action Against McDonald's' on 16th October, 1987, including the picket of the head office. It carries the instructions "Meet East Finchley Tube Station 7.45am", and the information "leaflets supplied" and "Called for by Greenpeace (London)".
The leaflet entitled "Anti-McDonald's Campaign. 1988: Putting the Boot in Big Mac" called for the 16th October,1988, to be World Day of Action against McDonald' s. It bore the "person and a cow in a burgers cartoon from the leaflet complained of. The words London Greenpeace Collective 8/88 " were printed at the foot of the second page. The leaflet referred to last year's day of action being easily the most successful yet. "
In my view, Mr Nicholson's evidence that the head office demonstration scheduled for the morning in fact took place in the afternoon and was sparsely attended and "a damp Squibb is consistent with the hurricane resulting in just a few demonstrators eventually getting to head office late in the day, despite what was generally thought to be the success of the day of action. I have already rejected one aspect of Mr Gravett's evidence, and I would prefer Mr Nicholson's account of the 16th October, 1987, to Mr Gravett's, but in any event Mr Gravett said that the leaflet advertising the head office picket had been circulated to other groups. There was evidence that London Greenpeace encouraged other groups to use the leaflet complained of later on. I do not see why the position should be any
different in 1987, and Mr Gravett was in no position to deny that members of other groups might have got to head office, later than planned, on 16th October, 1987.
Taking all these matters into account, I have no hesitation in accepting Mr Nicholson's evidence that there was a demonstration at head office on the 16th October,1997, at which copies of the London Greenpeace leaflet complained of were handed out. I am satisfied that the demonstration was instigated by members of London Greenpeace whether or not they actually attended themselves.
That demonstration took place soon after the beginning of the limitation period for this action.
I accept that Mr Nicholson took the view that the leaflet complained of, which he obtained on 16th October, 1987, was highly defamatory of McDonald's and that it was in McDonald's interest to discover who was responsible for its distribution. He noted the postal address of Greenpeace (London) at 5 Caledonian Road, London, N1, and sometime between October, 1987, and October,1988, when he observed another demonstration outside head office, he visited 5 Caledonian Road, saw that London Greenpeace was listed as an occupant of various floors, spoke to staff in a radical bookshop on the ground floor, but could get no useful information. He thought that he instructed the Second Plaintiff's solicitors to write to London Greenpeace.
During that period Mr Nicholson became involved in the correspondence with Veggies. He thought that he must have read the whole of the Veggies leaflet at that time and he remembered a solicitor's letter being sent to Veggies, but his direct recollection seemed limited.
Mr Gravett said that he was aware of what was passing between Veggies and McDonald's in 1988 and he communicated it to the rest of London Greenpeace. The revised copy of their factsheet was sent 'to use. "Occasionally I would request copies and they would be sent to us H, I accept this because it was clear from the evidence of Mr Smith that there were good lines of communication between Veggies and London Greenpeace, and the "Anti-McDonald's Campaign" leaflet ''1988: Putting the Boot in Big Mac" referred to Veggies' 'apology'.
According to Mr Nicholson a further demonstration was held by Greenpeace (London) outside head office in East Finchley on
16th October, 1988.
I have already referred to the Greenpeace (London) leaflet, "Anti-McDonald's campaign 1988: Putting the Boot in Big Mac", promoting "Oct 16th World Day of Action against McDonald". It pointed out that 16th October,1988, fell on a Sunday, and expressed the hope that protests would be carried out during the whole week end of the 14th - 16th. Mr Nicholson accepted that he may have been a day out in his recollection and I see no significance in that.
According to Mr Nicholson about twenty people took part in the demonstration, and some of them were handing out copies of the leaflet complained of.
Again, the Defendants' case was that there was no demonstration at McDonald's head office for World Day,1988. Ms Steel did not give evidence on the point, but Mr Gravett said that to the best of his knowledge there was no picket at head office for World Day,1988. He would have known if there was one. It fell on a Sunday and they just did the usual West End branches. However, he accepted that there was a World Day of Action in 1988, and I prefer Mr Nicholson's positive evidence that there was a head office picket at which copies of the leaflet complained of were handed out.
Mr Nicholson did not say that either Ms Steel or Mr Morris attended the October, 1987, or October,1988, demonstrations at head office. I am-not sure that Ms Steel or Mr Morris had been identified to him by then. If there other anti-McDonald's protests over 14th to 16th October,1988, weekend, they may have been elsewhere in any event.
The Greenpeace (London) leaflet promoting World Day of Action,1988, advertised an "Anti-McDonald's Fayre, organised by London Greenpeace, to be held on Saturday, 29th October,1988, at Conway Hall, Red Lion Square, WC1. Mr Nicholson said that he went to the Fayre with other members of his Security Department. It was well attended. Copies of the leaflet complained of were arranged in piles on a table at a Greenpeace (London) stall, together with other leaflets, and Mr Nicholson saw members of the public take copies of it.
I have a copy of a programme for the 1988 Fayre which includes the words, in block capitals: "If you want to know more about McDonald's and what it does, pick up a copy of London Greenpeace's factsheet, 'What's wrong with McDonald's: Everything they don't want you to know' from the London Greenpeace stall in the foyer".
I have already pointed out that Ms Steel and Mr Morris consistently used the word "'factsheets" to describe the leaflet complained of rather than other leaflets which carried the same title or part of it. So did Mr Gravett during his evidence. I have no doubt that the factsheet which readers of the 1988 fayre programme were invited to pick up was the leaflet complained of and that quantities of it were available for members of the public to collect from the Greenpeace (London) stall and that they were taken by them as Mr Nicholson recalled.
I am satisfied that a substantial number of copies of the leaflet complained of must have been available for collection. No doubt the organisers hoped for a good attendance. A press release which Mr Gravett wrote for the October, 1989, fayre said that about 1500 people attended the 1988 fayre and he appeared to accept that when giving evidence.
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.
Mr Morris probably attended as well, although Mr Gravett said that his attendance at London Greenpeace meetings was tailing off. He attended the October, 1989, fayre although he had family misfortunes to distract him by then. I believe that he would have found it difficult to stay away, as on elder statesman of the group, on its big public day, unless there was good reason to do so. No reason was put forward.
Ms Steel and Mr Morris must both have known of and concurred
in the publication of the leaflet complained of from the London Greenpeace stall.
At some stage, possibly around this time, because it may have been collected by one of his staff at the 29th October, 1988, fayre, Mr Nicholson saw a leaflet produced by Greenpeace (London) and purporting to set out the "Background" of "the London Greenpeace Group" and the "Aims and Ideals" of the "group'' and its "Campaigner. It was called "the aims and objectives leaflet" during the trial. Mr Gravett said that he wrote it ''in about 1989", and that it was handed out to people who wanted to know more about the group. Mr Gravett said that did not mean that it was the opinion of everyone within the group, but he had to accept that there was no way that the regular members of the group would have allowed it to go out if it seriously misrepresented their point of view.
The expressed "Aims and Ideals" started with the words:
"The main aim of our group is the revolutionary transformation of society to create a world without oppression, a world where human beings can live in peace with each other and the rest of nature." They ended:
"Taking action is vital because in the end deeds, not words, really matter. That's why we support groups such as the Animal Liberation Front who break the law. If property is used to abuse others it should be destroyed, and that isn't violence because inanimate objects don't feel pain. Some of us go further and would support violent resistance to oppression, for example the uprising by people on Broadwater Farm in Tottenham in 1985.
A paragraph under "Campaigns" referred to the anti-McDonald's campaign in the following terms:
"Perhaps the most successful campaign we have initiated in recent years has been the one against the McDonald's hamburger corporation. This has become a nationwide and worldwide movement uniting many disparate campaigners in the aim of smashing a multinational that epitomises everything we despise - a junk culture, the deadly banality of capitalism. McDonald's themselves are so frightened that they are resorting to threatening legal action - a sure sign we're winning! For World
Food Day 1986 (Oct 16th) we produced a factsheet, "What's Wrong with McDonald's", which is now established as a classic. We've received requests for copies from all over the world, and many groups have used it to make their own leaflets.
Mr Gravett accepted that the "we" referred to London Greenpeace and that the factsheet referred to was the leaflet complained of; that no other London Greenpeace document was called the anti-McDonald's factsheet; that London Greenpeace had received requests for it, and that when they received specific enquiries about McDonald's in 1986, 1987 and 1988 they put a copy of the factsheet in with the answer. He said that later on they were used more sparingly, but that if someone wrote for more information than that contained in the AS leaflet or relating to a specific topic, the factsheet would be sent to them, although he insisted that there were very few copies of the factsheet around in 1990.
The aims and objectives leaflet also referred to campaigns "against another murderous multinationals, against the Public Order Act, the General Election... and the Poll Tax, and for the abolition of all state boarders, to affiliation to the Anti-Nuclear Network, and to ''exposing any of the International Monetary Fund/World band and the '3rd World' debt crisis n, but these references were much shorter than the references to the campaign against McDonald' s.
A final paragraph under the heading "Joint Struggle" read:
"Unlike most groups we have no 'leaders' or 'members'; all our work is done collectively and you can join us by coming to our weekly meetings. Occasionally we invite speakers from other organisations. We encourage people to campaign locally (though we welcome donations from people who can't be active themselves) by joining existing groups or setting up their own. We can supply you with a list of contacts. As a local group ourselves, we have no 'branches', but there are groups throughout the world who share our aims. Joining one of them means you are taking the first step on the road to revolution and liberation."
There is no doubt that the aims and objectives leaflet was produced long before the writ and accompanying letters in this action, but after the October, 1987, head office demonstration. So the reference to McDonald's threatening legal action appears to be a reference to the letter which Mr Nicholson thought that
he had asked solicitors to write in 1987 or 1988, and it offers some support for his recollection although no copy of such a letter has been discovered.
I have no doubt that both Mr Nicholson and Mr Preston whom Mr Nicholson went to see about the anti-McDonald's campaign possibly, he thought, in June,1989, but certainly in my view before the first private investigators were instructed, had seen copies of the aims and objectives leaflet by the time of their meeting, and I have no doubt that they both took it very seriously. They were alarmed by the claimed association with the Animal Liberation Front which they believed, rightly or wrongly, to have been responsible for fire-bombing McDonald's restaurants in June or July,1989. They were alarmed by the references to breaking the law and destroying property and by the expressed aim of "smashing" McDonald' s. There was no evidence that I have heard that anyone in London Greenpeace had damaged property, but that is beside this point so far as Mr Preston's and Mr Nicholson's feelings were concerned.
Both Mr Preston and Mr Nicholson had information that the leaflet complained of was being distributed widely around the world. fir Preston charged Mr Nicholson with identifying the people within London Greenpeace, who were responsible for the anti-McDonald's campaign and for publication of the leaflet complained of, with a view to taking proceedings against them if necessary to stop publication of the leaflet.
Mr Nicholson gave evidence which I accept that he thought it would be necessary to instruct private investigators, and that he told Mr Preston so, because if action to stop publication of the leaflet was to stand any prospect of being effective, the company would have to have cogent evidence, admissible in court, of publication or participation in publication by as many as possible of the responsible individuals within Greenpeace (London), since action against only some of them might leave others feeling free to continue publication. It would not be enough to know, as he thought he did, that an unincorporated body like London Greenpeace was distributing the leaflet.
Mr Nicholson decided to instruct two separate firms of enquiry agents, each instructed in ignorance of the other so that he could see if each would corroborate the other's findings.
In my view Mr Nicholson's decision to instruct two firms of enquiry agents so that each would inadvertently be checking on the other without it knowing, demonstrates a scrupulous approach to the enquiry which he instigated, and it did result in exposing some unreliability in reports of one of the agents, Mr Clare.
On 29th September,1989, Mr Nicholson gave instructions to a director of a firm of private investigators called King's Investigation Bureau Limited and on 4th October, 1989, he instructed the director of a firm called Bishop's. He did so jointly with McDonald's solicitor in London. He said that his instructions to both firms were that they were to infiltrate London Greenpeace to find out, if they could, who were the authors, printers and distributors of the leaflet complained of, and to establish the identities of those responsible for organising the anti-McDonald's campaign including the distribution of the leaflet. He told each director that the method of operation was for him to decide but the agents were not to act as "agents provocateurs" and they were not to undertake any illegal or improper act. He said that he instructed each agency to report back regularly and they did so.
By this time London Greenpeace had already been publicising its plans for "Monday October 16th World Day of Action against McDonald's" and "Saturday October 21st - The Second anti-McDonald's Fayre, 1989. A press release which Mr Gravett wrote, was dated "10.8.89." It was headed "Greenpeace (London) " and "Anti-McDonald's Campaign 89'. Mr Gravett said that it was sent to the press. It spoke of an anti-McDonald's campaign initiated by London Greenpeace since 1984, which had since mushroomed into a truly worldwide movement linking diverse groups fighting against various specified matters which are in fact covered by the leaflet complained of. It went on to say: "For details see the enclosed copy of our factsheet, 'What's wrong with McDonald's'". Mr Gravett was forced to accept that copies of the leaflet complained of were sent out with the press release and, rather reluctantly, that there were enough copies available to do that. The press release continued: ton 15th October groups throughout the world will be protesting outside their local branch of McDonald' s. For details of the campaign and how to obtain leaflets please send a stamped address envelope to Greenpeace (London), 5 Caledonian Road, London, N1".
Mr Gravett also wrote a leaflet in anticipation of the 16th October, 1989, headed Anti-McDonald's Campaigns (then the steer and person in a burger cartoon 1989) "Big Mac Attack", for the 1989 mail out for the World Day of Action. It purported to have been written on behalf of London Greenpeace. It publicised Monday, October 16th, United Nations World Food Day, as World Day of Action against McDonald's, and it publicised the anti-McDonald's Fayre on the 21st October. It asked the reader to "see leaflet for details", which must be a reference to a further leaflet which must have been enclosed. It included the statement that "we are a very small group with only a dozen or so active members''. It said: "Many groups have used our famous factsheet, 'What's wrong with McDonald's: Everything they don't want you to know' as the basis for their own leaflet, and we will supply a copy on receipt of a large see (please don't request large quantities because we don't have many ourselves and can't pay the printing bills!) In, It said that Veggies of Nottingham and Arc Print of London N4 would print leaflets for local groups in bulk, putting local groups' details on their leaflets. Mr Gravett said that Veggies and Arc Print had their own printing presses. The "famous factsheet" was the leaflet complained of. The Big Mac Attack leaflet gave the London Greenpeace address at 5 Caledonian Road for "more details on any aspect of the Anti- McDonald's Campaign".
Mr Gravett said that the contents of the leaflet were true. He said that the "dozen or so active members" included himself, Ms Steel from 1988, Mr Morris until the early part of 1989, Andrew Clarke and Jonathan O'Farrell who were originally Defendants to this action, Ms Laporte and three others. That made nine people only.
On the 16th October, 1989, soon after the actual instruction of private investigators, of which no one else in McDonald's, including even Mr Preston, actually knew yet, Mr Nicholson observed a third annual demonstration held by Greenpeace (London) outside McDonald's East Finchley head office. He watched the demonstrators on and off, not continuously.
The essence of Mr Nicholson's account of what he saw was that demonstrators were holding banners and placards and handing out leaflets which he took to be copies of the leaflet complained of, because he did not know of other versions. Ms Steel and Mr Gravett who had been identified to him by
photographs beforehand were among the demonstrators. When he first saw Ms Steel she was holding one end of a banner. Mr Gravett appeared as one half of a pantomime cow.
In time he saw that Mr Gravett had some copies of the leaflet complained of tucked under his arm. By then Ms Steel had abandoned her banner and he saw her standing with another young woman close to a holdall about twenty feet from him. A pile of the leaflets complained of was next to the holdall and more were on top of it.
Mr Nicholson was certain that the leaflets were of the type complained of because the top page had the distinctive cartoon and the heavy print. So of course did the Veggies leaflet.
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.
Mr Nicholson wanted to get a copy of the leaflet which was being handed out, in order to be sure that it was the one which he was concerned with, so he walked round the back of the McDonald's building and then back onto the pavement further up the road, where a man who has not been identified handed him a leaflet. According to Mr Nicholson it was a copy of the leaflet complained of, which he kept and handed to McDonald's solicitor when she came to see him on the following day. There is no way of identifying the precise copy now. The leaflet which Mr Nicholson took was handed to the solicitor without a marking to identify it. When Mr Nicholson gave evidence the best he could do was to look at a copy of the leaflet complained of and say whether by his recollection it was the same as the one which he originally collected. The same happened with other witnesses. Of course, if the leaflet which each witness collected had been adequately marked and signed or labelled their provenance would be beyond doubt, short of fraud; but in the lack of such marking each witness was entitled to do what Mr Nicholson did in the witness box, in my view, as his best evidence" for me to evaluate, of the identity of the leaflet which he collected.
Mr Nicholson left head office by car shortly after 6pm which was about two hours after the demonstration began. He said that he passed about three feet from Ms Steel who was holding what he
assumed to be the same leaflets.
Mr Carroll also attended the demonstration outside head office on 16th October, 1989.
His account was that at about 3.30pm people began to collect outside East Finchley underground near head office. Their numbers rose to about fifteen by about 4pm. The ringleader appeared to be Paul Gravett who was accompanied by Ms Steel. At about 4pm the group moved to positions outside the head office and showed Greenpeace (London) banners and anti-McDonald's placards and distributed "What's Wrong with McDonald's?" leaflets.
The demonstrators dispersed at about 6.30pm. Mr Carroll was present throughout and he observed a number of members of the group including Ms Steel handing out the leaflet complained of, to members of the public. At times he was only a few feet away from her. Other leaflets were also distributed, including copies of a single sheet AN leaflet, some on pining paper and some on white, printed on both sides, and with a block of writing on the front page.
Leaflets collected at the demonstration by Mr Carroll's staff were brought to him after the demonstration, on the following morning, and on the day after that. They included about ten or eleven copies of the leaflet complained of. He handed them over to the company's solicitors.
Mr Nicholson's and Carroll's evidence that the leaflet complained of was handed out at the demonstration by Ms Steel and by others apparently connected with Greenpeace (London) was directly challenged on a number of bases.
Ms Steel said that she went to the demonstration to show her opposition to McDonald's and other multinational companies making profits from exploiting the earth, but she denied that she held or handed out copies of the leaflet complained of. She said that there were just a few "library copies" or the leaflet complained of left in the London Greenpeace offices at 5 Caledonian Road by October, 1989, and they would not be handed out at a street demonstration by anyone associated with London Greenpeace. They were not handed out on the 16th October, 1989.
In her witness statement dated the 12th July,1993, confirmed
in her oral evidence, Ms Steel said that she did not remember handing out any leaflets on the 16th October, 1989, picket and that she did not remember ever having handed out the leaflet complained of, as it was considered too lengthy and it was saved specifically for persons who asked for more information about McDonald' s.
During her evidence in chief Ms Steel expanded on this by saying that the evidence of Mr Nicholson and Mr Carroll that she was handing copies of the factsheet to members of the public was wrong. The only possibility was that somebody asked her to take a copy of the London Greenpeace factsheet or the Veggies factsheet to a particular person who had expressed interest. She did not think that this happened, but it was the reason why, three years later when making her statement, she did not want to say categorically that she could not have handed out a single factsheet.
When cross-examined on the point she said that she would not have been ashamed of handing out copies of the factsheet, but she would not have done so because ever since she had got involved with the group "it had just been said time and time again that a decision had been made at some stage that the group could not afford to get leaflets, to get the factsheets reprinted, and that they were considered to be too long for ........ people to take in if they were handed them on the picket so they were saved for specific enquiries."
A little later in cross-examination Ms Steel said that it was quite possible that somebody could have brought a few copies of the Veggies version of the leaflet to the picket.
Ms Steel accepted that on the 1st March,1993, she had answered an interrogatory asking if she had handed out the leaflet complained of to members of the public on the 16th October,1998, and said: " I can't remember, but I don't think so.' Mr Gravett's evidence supported Ms Steel' s. He said that the factsheet, that is the leaflet complained of, was too expensive to hand out on street demonstrations, and he did not think any factsheets were taken or handed out on 16th October, 1989. He took leaflets to the demonstration from the office, but they were single sheet AS leaflets. He said that there were only a few factsheets left after handing out on 16th October, 1986, and at January,1987, demos outside McDonald's branches in South
London. They were costly to reprint and they decided that they would not be handed out any more in the street. So various AS leaflets were produced and these were handed out on pickets as well as being sent out in answer to enquiries. Later in his evidence he said that to the best of his knowledge he could not remember seeing a copy of the factsheet at the 16th 0ctober, 1989, demonstration. He did not take any and he did not think any other members of the group did. He could not say that no one else did. It was possible that somebody else could have taken a few. There were Veggies versions in circulation on that day.
Mr Gravett did not remember seeing Ms Steel handing out any leaflets at all and he thought he would have noticed and remarked on it if she had been handing out the factsheet during a substantial part of the protest, because she had been long enough in the group to know that they did not hand out factsheets on demonstrations. He could only remember her holding the banner. I was shown what appeared to be a photocopy of the leaflet complained of on what was marked as recycled paper. Mr Gravett said that photocopying could be done at various places when required, but he did not make any photocopies of the leaflet complained of and he did not see anyone else doing it either.
Ms Laporte attended the picket on the 16th October, 1989. Her evidence was that she did not see Ms Steel handing out any leaflets. In any event it had been decided that it was better to use the AS leaflet to hand out at pickets, rather than the factsheet, by which she also meant the leaflet complained of, which was more expensive to print. Not many copies of it were left. It was suggested that there were a number of reasons why Mr Nicholson and Mr Carroll might have been, and indeed must have been mistaken in thinking that the leaflet complained of was handed out by Ms Steel or anyone who was part of London Greenpeace.
Firstly it was suggested that if Mr Nicholson, or Mr Carroll for that matter, saw leaflets which appeared to them to be copies of the leaflet complained of, they must have been Veggies versions with a front page which was identical to the leaflet complained of. Indeed Mr Nicholson fell into a trap set for him (but not
for Mr Carroll who gave evidence before Mr Nicholson on this point) in cross-examination when he said that a copy of the Veggies leaflet, the front page only of which was shown to him across the court, was the leaflet which he had seen at the demonstration. However when he was then handed the Veggies leaflet in Court so that he could look at it properly he immediately said that it was not the leaflet which he was handed by the unidentified man on 16th October, 1989, and that he had never seen such a leaflet until he was handed it in court. Mr Nicholson must have been wrong about that if, as he thought, he had read the Veggies leaflet at the time of the correspondence with Veggies in 1987 and 1988, but he might be forgiven for this error, in my view, because the Veggies version which Mr Nicholson saw in 1987 or 1988 was printed on both sides of two A4 sheets folded one inside the other to present as A5, whereas the one which Ms Steel produced to Mr Nicholson in cross-examination, and which I have as an exhibit, was a post 1993 or 1994 version printed on both sides of a large AL sheet and then folded twice to present as A5. So when Mr Nicholson unfolded it in the witness box he may have been seeing it for the first time. Ms Steel later said that she had forgotten that it was the two A4 sheet version which would have been available in 1989, not the single AT sheet version which she used in cross-examination. I accept that she made a genuine mistake.
It was also suggested that it might have been the single sheet A5 leaflet which Mr Nicholson saw at the 16th October, 1989, demonstration, rather than the leaflet complained of.
Many photographs were taken of the 16th October, 1989, demonstration. None of them show what can be identified as the leaflet complained of, and none of them show Ms Steel holding a leaflet at all. Ms Steel gave evidence that the leaflets which can be seen in some of the photographs are the single sheet A5 kind. She may well be correct, but this does not necessarily advance the matter because it is common ground that single-sheet AS leaflets were being handed out.
It was suggested that the First Plaintiff's security video cameras would have filmed the demonstration, providing evidence to prove that copies of the leaflet complained of were not being handed out, and that the films had been suppressed. Moreover, as an alternative to the suggestion that the leaflet complained of was not being handed out on the 16th
October, 1989, it was suggested that as people from various groups apart from London Greenpeace attended the demonstration, it must have been one of them who handed out copies of the leaflet complained of, in particular to Mr Nicholson.
Nevertheless Mr Nicholson was adamant that the leaflet which he saw Ms Steel pick up had the distinctive front page of the leaflet complained of. The Veggies leaflet has the same front page of course; but Mr Nicholson was equally adamant that the leaflet which he was handed not only had the front page but that when it was opened out it was the six page leaflet complained of. The leaflets which he saw the next day in Mr Carroll's office, collected by others, were mainly copies of the leaflet complained of.
I do not think that Mr Nicholson is mistaken about those matters. By October, 1989, Mr Nicholson must have been very familiar with the leaflet complained of. He had been receiving copies of it from various sources since '987, and he knew not just its striking front cover, but also its folded six page format, and its contents, including the back page identifying it with London Greenpeace if one merely turned it over. He said that it was the one which was prominent in 1989 when he discussed it with Mr Preston and the company's solicitors. The Veggies leaflet had a number of distinguishing features if one looked at more than the front page, notably two extra pages including the Veggies Veggies back page. Mr Nicholson would be even less likely to mistake the single sheet AS leaflet with substantial text on the front page, for the leaflet complained of. I believe that he was aware that the AS leaflet was being handed out at the 16th October, 1989, demonstration because he said that Mr Carroll was handed a different sort of leaflet and he saw it the next day, and I believe that he must have been referring to the single sheet AN leaflet. Moreover he had just engaged two firms of enquiry agents to identify those in London Greenpeace who were distributing the London Greenpeace leaflet complained of. That was the leaflet which he was concentrating on. He spoke to the company's solicitor about it the next day. The Veggies leaflet had already been dealt with by correspondence over a year earlier. I do not believe that the absence of photographs of the leaflet complained of on the 16th October, 1989, means that Mr Nicholson must be mistaken, and I consider the suggestion of concealed, exculpatory video-film to be fanciful.
Moreover, Mr Nicholson has the support of Mr Carroll's evidence.
I do not believe that Mr Nicholson was lying.
The photographs of the demonstration on the 16th October, 1989, clearly show a group of people working together to campaign against McDonald' s.
I am quite satisfied that both Mr Nicholson and other members of the security staff were handed copies of the leaflet complained of on the 16th October, 1989, and that Ms Steel played an active part in its distribution on that day.
Although I am not sure that I had admissible evidence of it, it was generally accepted that Mr Morris's partner and their young son were injured in an accident in August, 1989, and that he spent some weeks attending them in hospital before taking over their care at home.
In any event Mr Morris took no part in the demonstration on the 16th October, 1989.
The photographs of the 16th October, 1989, demonstration do show a group of people working closely together to protest against McDonald's under the banner of London Greenpeace.
By the 16th October, 1989, the private investigators had been instructed and the? continued their enquiries up to and after the issue of the writ on 20th September, 1990. Between 16th October, 1989, and 20th September, 1990, the agents sent out by the two firms attended over forty meetings at 5 Caledonian Road or 6 End sleigh Street, and a number of other events such as "fayres" or public, fund-raising occasions. Ms Steel was seen at something like thirty meetings or events. Mr Morris was seen at eight meetings. He telephoned other meetings, and he attended a Fayre shortly after the 16th October, 1989, demonstration. I was told that seven private investigators in all were used by the two firms. The Plaintiffs called four and the Defendants called one. Of the other two, one was not identified and the other, Ms Michelle Hooker, was not called by either side. The witnesses whom the Plaintiffs called gave specific evidence of occasions when Ms Steel or Mr Morris was present or
McDonald's was mentioned.
The first agent to be brought into action was Mr Antony Pocklington, a young man who was instructed by King's. He started his observations in October, 1989, and they continued until June, 1990. He was not aware of the involvement of other private investigators until his own participation had come to an end.
His written statements dated 8th June, 1993, 17th May, 1995, and 15th May, 1996, which he confirmed as true to the best of his knowledge as part of his evidence, and much of what he actually said in the witness box, depended on notes which he made after each of his observations: normally within three hours afterwards but sometimes during the morning after an evening meeting. He appeared to be a careful witness, quite prepared to accept what was put to him in cross-examination, if he agreed with it. Ms Steel accepted that Mr Pocklington's evidence and the parts of his notes upon which it relied were generally fair and accurate, although she would not accept their total accuracy. Mr Gravett said that Mr Pocklington's notes seemed to be a pretty fair record, generally speaking, although he did not agree with every detail. Mr Pocklington seemed to me to be a fair witness, doing his best to be accurate, with the advantage of notes made very soon after his observations, unlike Ms Steel, Mr Gravett and Ms Laporte. I do not consider that Mr Pocklington's need to rely on his notes or his earlier statements impugned his evidence. His witness statements were based on his notes, but even in June, 1996, when he gave evidence, he had some recall of events without his statement or notes. When he referred to his notes or his statements he was in effect saying that he had done his best to get down accurately in his notes what he recalled as relevant when he made them, and that his statements were made from them, so that what was in his notes and statements was true, subject to any afterthought as the result of examination and cross-examination in the witness box. He was careful to point out where he was relying on his statements and particularly his 1993 statement, and his notes, rather than immediate recollection.
I accept that Mr Pocklington's account of events was essentially accurate, and I accept his evidence save where I say otherwise.
Mr Pocklington was first instructed to attend, observe and report on a meeting of the Hackney and Islington Animal Rights Campaign Group in Blackstock Road, London, N4, on the 2nd October, 1989. A man whom he later identified as Mr Gravett explained that as well as being part of the Animal Rights Campaign Group he was a member of an organisation called London Greenpeace. Mr Gravett then showed a video recording of a Channel 4 presentation of a film called "Jungleburger", dealing with the meat industry in South and Central America and implicating McDonald's among others. He spoke of why London Greenpeace was targeting McDonald's and of an Anti-McDonald's Fayre to be held on 21st October, 1989.
Mr Pocklington attended the Anti-McDonald's Fayre on the 21st October, 1989. Mr Gravett and a man called Charlie appeared to be in charge. He said that Ms Steel and Mr Morris did not play any part in organising the 1989 Fayre, but that both turned up on the day to help. Mr Pocklington saw numerous leaflets on the Greenpeace (London) stall and he took some of them including a copy of the leaflet complained of, according to his first written statement made on June, 1993, which he averred to be true. This does not appear in his notes, and in the witness box, relying only on his memory over six years after the event, he thought that he first saw a copy of the leaflet complained of on his first visit to Endsleigh Street or Caledonian Road, which would mean the 26th October or 2nd November, 1989. It was a leaflet which was "around" throughout the course of his visits to Endsleigh Street and Caledonian Road between October, 1989 and June, 1990, certainly at Caledonian Road and at a number of public meetings at Endsleigh Street as one of the leaflets brought to public meetings there by one of the members of the London Greenpeace group. Mr Gravett said that to the best of his knowledge the factsheet was not available at the 21st October, 1989, fayre. Possibly a few copies were there. Veggies were there too and they had probably brought some copies of their version. When pressed about this in cross-examination he said that he did not take any copies of the factsheet to the fayre and he did not see anyone else in London Greenpeace take any, despite the fact that copies had been distributed to the press in August. It was possible that someone might have taken copies along "off their own bat", but "it was not a group decision". If copies of the factsheet were at the fayre there could not have been very many, because there were not very many left in the office.
The Defendants did not suggest that the leaflet complained of was not available at the fayre when cross-examining him, despite my advice that they should do so if there was a positive challenge on this point.
Ms Steel gave evidence that she went to the fayre because she was "interested in the stalls there, interested to look round. " She worked in the creche some of the time and she helped to clear up afterwards. She thought that Mr Morris was there for the whole day. She did not say that the leaflet complained of was not there.
Ms Jane Laporte, called by the Defendants, gave evidence that she was at the fayre and that, as Mr Pocklington said, it was organised by Mr Gravett helped by "Charlie" Neither Defendant led her to give evidence denying that the London Greenpeace stall bore copies of the leaflet complained of, as she could presumably have done if its existence was challenged. Ms Laporte said that Mr Morris attended the fayre to help out.
I have a copy of a ''souvenir programme" for the 21st October, 1989, Anti-McDonald's Fayre, which was apparently collected at an Endsleigh Street meeting by Mr Russell, another private investigator, on 26th April, 1990.
The front page gives the time and place of the fayre. It says that it is For a world without multinationals" and that it is "organised by London Greenpeace, 5 Caledonian Road, N1. Tel:01-837-7557". It has a cartoon with a large burger with "McDeadly" written on it and Ronald McDonald holding another burger, with blood dripping from his mouth.
"Another year, another Anti-McDonald's Fayre. After the success of last year's event we had no excuse not to organise another. We had to go one better, of course, and this year's is much bigger and, we hope more enjoyable. This may be the last one, though, as the huge amount of organisation involved stretches the resources of a tiny group like London Greenpeace to its limits. The Fayre should be seen as only one part of a much wider Anti-McDonald's campaign, which itself is only part of a worldwide struggle against multinationals
and exploitation. Our struggle must be constantly changing and renewing itself, like the forces of oppression we are fighting. This has been the year of the 'green'. Suddenly it is fashionable to be green and everybody's claiming they are one. McDonald's are no exception and they have recently issued a series of 'McFact Cards' to give them green appeal. A more accurate title would be 'McLie Cards' and next year we are going to launch an all-out propaganda offensive. The core of this will be a book we are researching which will finally destroy all the falsehoods surrounding them. It will be entitled, 'McDonald's - the truth behind the "facts"! We shall also be revising and updating our factsheet on McDonald' s.
To continue our campaigns we do, of course, need money. Without it there will be no Anti-McDonald's campaign, nor anything else. We are a completely independent collective with no link to the much larger, wealthier Greenpeace Ltd. We share the same name because we were around first (since 1970) but we don't share their cash - we're always in debt! So please dig into your pockets and make a donation today, or send a cheque payable to London Greenpeace to the address below. And enjoy the Fayre!"
The page ends with the same box describing The London Greenpeace Group and the same postal address as that at the bottom of the leaflet complained of; but open meetings are said to be 7.30pm every Thursday at 5 Caledonian Road, not Endsleigh Street.
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.
Mr Gravett estimated that two thousand people attended the fayre.
A later page in the programme advertised a public debate on Thursday 26th October, at 6 Endsleigh Street, WC1, between members of Haringey and Hackney Green Party's (sic) and London Greenpeace. Mr Pocklington went to the public meeting at 6 Endsleigh Street on the 26th October, 1989, featuring the debate between three guest speakers from the Green Party and members of Greenpeace (London). Mr Morris was one of the latter, and the most vocal one present.
Mr Pocklington spoke to Mr Morris after the meeting. Mr Morris told Mr Pocklington that off and on he had been involved with the group for about ten years, as I have said earlier. Mr Pocklington expressed considerable interest in the group and Mr Morris invited him to the next meeting of the group at its office at 5 Caledonian Road on the 2nd November, 1989. Mr Gravett told me that he organised the meeting on the 26th October. He asked David Morris to speak because he had been in the London Greenpeace group a long time and knew about the history of the group going back to the 1970s and early 1980s. It was common ground that the meeting place at 6 Endsleigh Street was a large room with a table in the middle, around which those who came to meetings could sit and upon which various leaflets were placed for people to take away if they wished. Others, apart from London Greenpeace, used the room. So it is reasonable to assume that London Greenpeace leaflets were brought there by members of London Greenpeace for its public meetings.
On the 2nd November, 1989, Mr Pocklington went to London Greenpeace's own office at 5 Caledonian Road. It was a small untidy room about ten feet by eight, furnished with filing cabinets and shelves. It was common ground that whereas the meetings at Endsleigh Street were open to the public and were advertised to some extent, the meetings at Caledonian Road were
really restricted to members of London Greenpeace and people whom they invited, as Mr Morris invited Mr Pocklington, although the October, 1989, Fayre programme referred to them as open meetings and broadcast the day and time.
Mr Morris was not in fact present at the 2nd November, 1989, meeting but Ms Steel was. McDonald's was mentioned occasionally. Someone said that the group would probably go into a bit of a lull after the fervour of the Anti-McDonald's Fayre. Mr Pocklington said that copies of the leaflet complained of were stacked in boxes on home made shelving.
There was a filing cabinet with drawers marked "IMF", "Muckdonald's" and the name of another multinational.
On 9th November, 1989, Mr Pocklington attended a meeting at 5 Caledonian Road. Ms Steel was present. Mr Pocklington said that during the meeting a man called John, who was described as the treasurer, spoke of the group's account with the Nationwide Anglia Building Society which then stood at £1,600.05 credit. There were some bills to pay but two forthcoming benefit concerts were expected to raise considerably more money. These concerts had been advertised in the 1989 fayre programme as "London Greenpeace Benefit Gigs on the 11th and 15th November, 1989. The meeting was brief and McDonald's was mentioned only rarely, possibly only during what Ms Steel, when cross-examinating Mr Pocklington, described as "the letter stage of the meetings when someone read out a letter which mentioned McDonald' s. The letter stage took place early on in Caledonian Road meetings when letters received by London Greenpeace were read out so that all would know their contents. Mr Pocklington remembered a letter from a company which claimed that it was to about to begin a campaign of leafletting in London, aimed at McDonald' s.
On 11th November, 1989, Mr Pocklington went to one benefit concert at the New Pegasus public house in N16. Ms Steel and the man John manned the door. The evening was organised by Andrew Clarke.
Mr Pocklington also went to the other Greenpeace (London) benefit concert at the same pub on the 15th November, 1989. Again the door was manned by Ms Steel and John.
On 16th November, 1989, Mr Pocklington attended a meeting of Greenpeace (London) at 5 Caledonian Road. During the course of
the evening a provisional date was set for the following year's Anti-McDonald's Fayre which was to be on 20th October, 1990. Mr Pocklington said that Ms Steel contributed to the discussion which lead to that decision.
On 23rd November, 1989, Mr Pocklington attended a meeting at 5 Caledonian Road. Ms Steel and Mr Gravett were there.
According to Mr Pocklington, Mr Gravett told the meeting that he was going to write and publish a book or pamphlet of the facts against McDonald's, although no date was given when he expected it to be finished. The pamphlet was intended for sale and Mr Gravett said that it would go out under the London Greenpeace name rather than his own. Mr Gravett accepted that this was true. He said that copies of the factsheet had almost run out by the end of 1989. He thought that it should be updated and from time to time he talked about updating it and including more information. He said that the fact that it was never published gave an indication of the low priority of the anti-McDonald's campaign in 1989 to 1990. In my view it is more likely that Mr Gravett had not managed to finish the pamphlet before service of a writ upon him in these proceedings made him think better of the project. He agreed that the idea of writing the pamphlet had nothing to do with any of the enquiry agents. Mr Pocklington recalled that Mr Gravett expected it to be a full length pamphlet as opposed to the leaflet which they currently had. It was said that the person who wrote the original leaflet about McDonald's was no longer with the group.
Mr Pocklington volunteered to join Andrew Clarke and John at 5 Caledonian Road to spend a day answering a backlog of letters. A number of witnesses referred to letters being answered at Caledonian Road meetings or by those who arrived early, before meetings were started, but occasionally volunteers went to the office to reduce the backlog on non-meeting days.
On 29th November, 1989, Mr Pocklington went to the office at 5 Caledonian Road. He stayed there from 10.30am to 6.30pm. He was met by a man called John and shortly afterwards Andrew Clarke arrived. Most of the day was spent answering letters. Many of the letters were from school children and students who asked specific questions about the environment. Some enquiries specifically referred to McDonald's and asked for information on the subject or said that they had seen the leaflet complained of
and wanted further information. Those simply asking for information about McDonald's were sent the leaflet complained of. Letters asking for supplementary information, for instance people who said they had seen the leaflet complained of, were put to one side for Paul Gravett to deal with because he was best able to answer questions about McDonald' s. Letters of general enquiry, that is not specifically about McDonald's, were sent a range of material including what Mr Pocklington referred to as "the shorter anti-
McDonald's leaflet" which was also called 'What's wrong with McDonald's?" and which I took to be the two sided, AN leaflet.
This account of how queries were answered makes sense.
On 7th December, 1989, Mr Pocklington went to a meeting at 5 Caledonian Road. Ms Steel was there. According to Mr Pocklington it was suggested that the next year's Anti-McDonald's Fayre should be the final national Anti-McDonald's Fayre and that representatives would then be shown how to go about organising such a fayre with the object of them arranging their own fayres in their own areas around the country on the same day in the following year. The decision was put over to January, 1990. Ms Steel's evidence was consistent with Mr Pocklington's account. She thought the fayres took up too much time. Mr Gravett and others wanted them to continue. A last fayre to encourage others was a compromise suggestion.
Mr Pocklington attended meetings at Caledonian Road or Endsleigh Street, at which Ms Steel was present, on 14th and 21st December, 1989, and 11th and 18th January, 1990. According to Mr Pocklington-nothing of any real significance to this case was discussed. They demonstrate the fact of Ms Steel's continuing, regular attendance.
By the beginning of January, 1990, the other agency, Bishop's, had instructed a nineteen year old private investigator called Allan Clare to attend meetings of London Greenpeace.
Like the other private investigators, Mr Clare started his evidence in chief by saying that his written statements, made on the 24th May, 1993, the 19th June, 1995, and the 19th June, 1996, were true.
The statements were largely based on notes which he made in a book after each meeting which he attended. The book was produced in Court. He made the notes about ten minutes after each meeting. He thought that his notes were substantially
accurate. However, as his evidence developed it became clear that his notes were wrong in respect of two matters about which there could be no innocent mistake.
On the 19th April, 1990, Mr Clare made a note of going to 5 Caledonian Road. Only Jane Laporte was there. They killed time by answering letters, which involved putting anti-McDonald's leaflets in envelopes in response to enquiries about McDonald' s. No meeting was held as no one else arrived. Mr Clare's witness statement and his evidence accord with his notes. Yet Mr Pocklington noted and gave evidence of a meeting on that day attended by himself, Mr Clare when he knew him as "Alan from Catford", Jane Laporte, Ms Steel, Mr Morris and two others. The meeting went on until 9.45pm and he recorded no mention of McDonald' s.
On the 14th June, 1990, Mr Clare noted a meeting at 5 Caledonian Road. He noted "nothing important" and that Ms Steel was present and that the meeting ended early as she and Paul Gravett were going for a drink with friends. But Mr Bishop, another enquiry agent who was there, did not record Ms Steel being present. She gave evidence that she was not there because she was on holiday on Barra, and I accept her evidence, supported as it was by a post card sent by her and a friend from Barra on 18th June by which time she thought that she had been there a week.
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.
On 25th January, 1990, Mr Pocklington went to a meeting at 6 Endsleigh Street. He said that Ms Steel and Mr Gravett were there, as was someone called "raven. I am satisfied that it was Mr Morris although Mr Pocklington could not remember by the time he gave evidence, because Mr Morris volunteered that he thought that it was him. Mr Pocklington's account was that Mr Gravett said that he
was going to write a new pamphlet on the anti-McDonald's theme. He had not yet started but he said that it might be ready by October, 1990.
Ms Steel and "Dave" participated in discussions about the future of the group and its anti-McDonald's campaign. The anti-McDonald's Fayre was not to be repeated in 1990. The plan was to hold a general fayre at which all the issues with which the group was concerned, including the McDonald's issue, would be highlighted. The provisional date set for this event was 27th October, 1990. The fayre would also celebrate twenty years of the group's activities. It was indicated that the group's anti-McDonald's activities were no longer at the fore as it was felt that they had achieved more or less all they could by creating an awareness of McDonald's activities, resulting in many other groups, internationally, taking up the banner. It was agreed that they would not ignore McDonald's, but there were other projects including exploitation by the IMP and world banks, which now needed their attention more.
It was never suggested that the anti-McDonald's campaign should be abandoned and Mr Pocklington thought that the anti-McDonald's campaign remained an important interest for the group throughout the time that he attended London Greenpeace meetings.
Mr Pocklington got the impression, not necessarily just from this meeting, that there was a general feeling that a lot of time and effort had been spent exclusively on McDonald's and that people wanted to do other things as well. There were other things which were important to them as well.
Ms Steel gave evidence that Mr Morris suggested that the anti-McDonald's campaign should be dropped, but she could not say that he did so at this meeting. She said that Mr Morris was one of the people who argued against another "Anti-McDonald's Fayre. Mr Gravett gave evidence that it was decided that the October, 1990, fayre was to be to be a "London Greenpeace Fayre".
On the 8th February, 1990, Mr Pocklington attended a meeting at 5 Caledonian Road. Ms Steel and Mr Gravett were there. Mr Pocklington's evidence was that Mr Gravett said that the BBC World Service had contacted the group asking them to take part in a debate with McDonald's but McDonald's had declined. Mr Gravett said he would contact the BBC to say that he would still like to put forward his point of view. It was suggested that Mr
Gravett could put McDonald's refusal to debate to good use and he said he would try to issue some press releases on the subject.
On the 22nd February, 1990, Mr Pocklington went to a meeting at 6 Endsleigh Street. Ms Steel and Mr Gravett were there. Afterwards they went to a pub where press releases about McDonald's refusal to debate were again discussed.
On 1st March, 1990, Mr Pocklington attended a meeting at 5 Caledonian Road. He said that Mr Morris and others answered letters received by the group. By the time that he gave evidence he could not remember just which people put which leaflets into which answering envelopes. I have already given his account of the procedure of answering letters in his account of the 29th November, 1989, meeting, and it seems likely that Mr Morris sent off copies of the leaflet complained of in answer to queries about McDonald's, and that even if he did not personally do so he was part of a joint exercise with others, which resulted in that happening.
Mr Morris told Mr Pocklington that he was thirty-six and that he had been in the group for over ten years. Someone at the meeting referred to Mr Morris having been absent for several months because of an accident to his partner and child, and Mr Pocklington agreed that the information was consistent with Mr Morris's absence from meetings. In fact it was five weeks since the meeting on the 25th January, which Mr Morris attended and which was in turn three months after the October, 1989, fayre and the October,1989, debate which Mr Morris took part in.
Mr Clare also attended the meeting on the 1st March. He said that during discussions Mr Morris made it clear that he had been heavily involved in the anti-McDonald's campaign and that he had been a member of the group for some time. He also said that he had organised the 1989 Anti-McDonald's Fayre and that he had produced the leaflet for the anti-McDonald's campaign. Mr Gravett and Ms Steel said that this was quite wrong save for Mr Morris's long association with the group. However, what Mr Clare recalled Mr Morris saying is all of a piece. It accords with his long-standing membership of the small group. The part about producing the leaflet is consistent with Mr Morris's affidavit to that effect five years later. I do not believe that it would be beyond Mr Morris to claim that he organised the fayre even if he only contributed to prior discussions and attended for the day. I accept this part of Mr Clare's evidence.
On the 6th March, 1990, Mr Clare and one of his principals got into the office at 5 Caledonian Road when no one else was there.
He said that were let into the building by the Gay/Lesbian switchboard which controlled access by entry phone, and they slipped the lock of the London Greenpeace Office with a plastic card. Mr Clare took a number of photographs, prints of which were produced. One shows shelves on one of which is a brown cardboard box with "McD FACTSHEETS " written on it. Mr Clare said that the box contained copies of the leaflet complained of. What appears to me to be a copy of the leaflet complained of is to be seen sticking out of one side of the box. Although one can only see what appears to be part of the back page, it does appear to have the same format as the back page of the leaflet complained of, with two columns of text save for the bottom of the page where the text extends across the page. This is not the format of the back page of the Veggies leaflet, and it is clearly not a single sheet. It was suggested to Mr Clare in cross-examination that he had planted the leaflet there. He denied doing so. Mr Pocklington said that the box accorded with his recollection.
Ms Steel said that the box shown in the photograph was the box used for taking material including various leaflets, scissors, sellotape, a stapler, a pen and sometimes a banner, to stalls; but not the leaflet complained of.
Mr Gravett said that copies of the leaflet complained of ran out completely (apart from a few library copies) in around March, 1990. He did not recognise the writing "McD FACTSHEETS" on the box on the shelf in the photograph. He denied that any copies of the factsheet (the leaflet complained of) were in a box in the office on the 6th March. To the best of his knowledge the box in the photograph was the box which the copies of the factsheet originally came in when they were printed in 1987. It would have contained a couple of thousand leaflets then but by 1990 there were no factsheets in it. He too thought that the box was the box they used to take things to stalls in.
Mr Brian Bishop, an enquiry agent who was not instructed to attend meetings until May, 1990, gave evidence that leaflets, including the leaflet complained of, were kept in shelves on one side of the room at 5 Caledonian Road. Those who attended meetings there were encouraged to take them for distribution.
Sometimes the longer version of the "What's wrong with McDonald's" leaflet, which I took to be the leaflet complained of, was out of stock, but at other times quantities of it were in the office. Shorter versions were available. Mr Bishop specifically remembered seeing the leaflet complained of at Caledonian Road. It had the distinctive front and more information than the shorter leaflet, although he could not remember just what the information was by the time he gave evidence. At one point in cross-examination it appeared to me that Mr Morris might be suggesting that any longer versions, apart from a few library copies, were Veggies versions, but he never put this to Mr Bishop and, of course, he did not give evidence to that effect.
Despite the strong reservations which I have expressed about Mr Clare's evidence, I think that this is an instance where the strong inherent likelihood of the situation and other evidence about the availability of the leaflet complained of supports Mr Clare's evidence that the photograph taken on the 6th March, 1990, is genuine in what it shows. I do not believe that he thought that there was any real issue about London Greenpeace having copies of the leaflet complained of at the time. If he had wanted to plant a copy of the leaflet complained of he could have made a much better job of making its identity clear to the lens of the camera. If it was a plant it was an extremely subtle one. In my judgment, despite the evidence of Ms Steel and Mr Gravett to the contrary, the clear inference to be drawn from the photograph is that by March, 1990, there were still enough copies of the leaflet complained of in the London Greenpeace office to justify a box to hold them, marked to that effect, I do not doubt that the box was used to take them out and about when required.
Another photograph shows filing cabinets. One of the drawers of one of the cabinets is labelled "MuckDonald's" although Mr Clare originally noted and recalled that it was labelled "McNasty".
The photographs show walls and doors and shelves bearing a variety of posters and placards supporting various causes. Some, but only a limited number, refer to McDonald' s.
Another photograph shows a small set of wooden filing shelves, one of which is labelled McDonald's letters". On 15th March, 1990, Mr Pocklington attended a meeting at 5
Caledonian Road. Ms Steel and Paul Gravett were present. Mr Pocklington's second statement, made in May, 1995, and confirmed by him, said that Aldgate Press had mistakenly produced 10,000 copies of the leaflet complained of and were giving them to the group free of charge. His contemporaneous note refers to "10,000 copies of the "What's wrong with McDonald's" leaflet'', which description could of course refer to either the leaflet complained of or the short AS leaflet. He said that he never actually saw them. Ms Steel and Ms Laporte gave evidence that the 10,000 leaflets printed by mistake were the short, AS leaflets. They were printed by Algate Press and Ms Laporte thought that they were commissioned by Hackney and Islington Animal Rights Campaign. Mr Clare's note supports this last point. Despite my general view of Mr Pocklington's reliability I am not prepared to find that the 10,000 copies were copies of the leaflet complained of, rather than single sheet Ass.
On 22nd March, 1990, Mr Pocklington attended a meeting at 5 Caledonian Road. Ms Steel and Mr Gravett were there.
On 19th April, 1990, Mr Pocklington attended a meeting at 5 Caledonian Road. He said that Ms Steel and Mr Morris were there. This was the occasion to which I have already referred, when Mr Clare noted that no meeting took place. His account of what happened on that day included the answering of letters. Mr Clare accepted that he probably sent out anti-McDonald's leaflets in the replies. He said that it would have been unwise to refuse if he wanted to remain a member of the group.
The next London Greenpeace meeting was at 6 Endsleigh Street. It was held on the 26th April, 1990, and it was attended by another investigator instructed by King's, Mr Jack Russell.
There was an issue as to whether Mr Russell made notes at the meeting as Ms Laporte alleged but Mr Russell denied, from which he made a report to King's, or whether he simply made a report on the evening of the meeting or the following morning, as he said. In either event someone at King's made a report for the Plaintiffs' solicitors, apparently based on Mr Russell's report. Mr Russell's witness statement was clearly drafted by the solicitors on the basis of the King's report. Mr Russell signed his witness statement on the 6th May, 1993, having crossed out the last paragraph which referred to and exhibited "a contemporaneous note". The note never appeared, if it ever existed; nor did Mr Russell's original report. Mr Russell did
not check the King's report or his witness statement cyan own report, but when he gave evidence he said that his May, 1993, statement and a supplementary statement dated 14th June, 1996, were true. Under both examination in chief and cross examination, Mr Russell was referred to the King's report to refresh his memory of the meeting on the 26th April, 1990.
The essence of Mr Russell's account of the meeting by reference to his May, 1993, statement and the King's report, was that it was attended by a maximum of nine people at any one time. They included Jane, presumably Laporte, and Paul, presumably Gravett. Mr Morris arrived at 9 p.m. about an hour after the meeting began.
Towards the end of the meeting, Mr Morris spoke of the annual Mail Out by London Greenpeace to other interested groups involved with animal liberation, ecology and anarchism. This was to be an international Mail Out. Publicity would be given to such matters as International Anti-McDonald's Day on 16th October, 1990.
Mr Morris suggested that members of the group might give thought to going to Moscow on 16th October, 1990, to demonstrate outside the new branch of McDonald's there. This proposal received only moderate interest but Mr Morris continued by saying that, since Chernobyl, the Russians were becoming increasingly interested in ecological and environmental issues. Finally Mr Morris said that the international Mail Out would include the customary McDonald's Factsheet.
Mr Morris, by now controlling the proceedings, then spoke with enthusiasm about proposals for the London Greenpeace Fayre on 27th October, 1990 at Conway Hall. It was the third year that the group had organised the fayre and he stated that one of the themes would be an/i-McDonald' s.
The meeting broke up at 10 p.m. Leaflets, including the leaflet complained of, placed in piles, were collected by him and by others. The copies of the leaflets which Mr Russell picked up that day and which he produced, included the leaflet complained of, the aims and objectives leaflet, a souvenir programme for the 21st October, 1989, Anti-McDonald's Fayre, and two copies of another programme for another, undated, Anti-McDonald's Fayre. He had attached the leaflet and programmes to his report.
programme. The two undated programmes probably relate to the October, 1988, fayre. They include a page setting out "ten things you didn't know about McDonald's", followed by the text to which I have already referred: "If you want to know more about McDonald's and what it does pick up a copy of London Greenpeace's Factsheet, 'What's wrong with McDonald's: Everything they don't want you to know', from the London Greenpeace stall in the foyer'.
The meeting on 26th April, 1990, was the only one of which Mr Russell gave evidence. He may have attended another meeting, but if he did so he had no useful recollection of it. Mr Russell is a man in late middle age. He had a strange, rather over gentlemanly manner in the witness box. He appeared to be rather cagey when he was first cross-examined, saying that he had not worked for King's for five years, before going on to accept that he had worked freelance for them quite recently. He admitted that he had approached Frances Tiller/Davidson shortly before, to ask her why she was giving evidence for the Defendants. By the time that Mr Russell gave evidence in June, 1996, he could not remember precisely what had been said at the meeting and he could not remember whether Mr Morris had said what he had reported him as saying. He had to rely on the King's report. I did not find Mr Russell an impressive witness. He probably did make notes at the meeting because the King's report contained some details which it would be hard for anyone to remember without a truly contemporaneous note. On the other hand I do not consider that his determination that he has not made a note was sinister. It was based on the understandable feeling that it would not have been sensible to make an overt note. I reject Mr Morris's suggestion that Mr Russell's note and his original report have been purposely suppressed. If Mr Russell did make a note his report would be more likely to be accurate, and there was no reason why the King's report should differ from his report. Very little in the King's report upon which Mr Russell relied was disputed by defence evidence. Mr Morris did not give evidence to contradict it. Mr Gravett said that there was no international mailout in 1990, but of course plans may have changed after the meeting. He said that he could not remember Mr Morris mentioning Moscow, but of course the meeting was long ago. Mr Gravett said that the new McDonald's in the USSR may have been mentioned although he did not remember it
being discussed at that meeting. Mr Morris did not lead Mr Gravett to deny that he had mentioned it although when he was crossed-examined by the Plaintiffs' counsel he did say that he did not remember Mr Morris mentioning it.
Mr Morris restricted his cross-examination of Mr Russell to testing his reliability and recollection. Although he challenged some inconsequential detail, he did not challenge Mr Russell's account of what Mr Morris said about Moscow, although I invited him to do so, if it was disputed.
All this leads to an odd situation so far as Mr Russell's evidence of the 26th April, 1990, is concerned.
Mr Russell should not have been allowed to refer to the King's report, because it was not his own report and he did not check it against his own notes, if he made notes, or his own report. So it seems only fair to disregard any evidence which depended upon that report, taking account only of what Mr Russell could actually recall as he gave evidence. His recollection was very sketchy after six years but in my view he did recall the following matters.
Mr Morris was at the meeting and he was talking a lot. His voice was heard most, although he came in about an hour late. Mr Russell had heard Mr Morris speaking in Court and recognised his voice. Mr Morris has a distinctive voice and he does talk a lot. Mr Gravett described him as garrulous. The possibility of going to Moscow was mentioned by someone at the meeting. It stuck in Mr Russell's mind because it was an unusual idea.
The leaflet complained of was probably one of the leaflets available for collection, and collected, at the meeting. Mr Russell did not mark the leaflets which he took from the meeting, but when Mr Morris, in cross-examination, appeared to suggest that it was the single sheet A5 leaflet which was available for collection, Mr Russell had some recollection that the one which he picked up had more pages. The reverse of the single sheet A5 looked like the back page of the leaflet he collected. In fact, despite real differences, the second page of the single sheet A5 leaflet has a slight similarity to the back page of the leaflet complained of in that they both have the description of The London Greenpeace Group and the postal address at the bottom with two columns of admittedly different text above, which the Veggies leaflet does not have.
In my judgment Mr Morris took a very active part in a London Greenpeace meeting on 26th April, 1990, where anti-McDonald's activities were discussed and copies of the leaflet complained of, as well as the aims and objectives leaflet, were available and collected.
On 24th May, 1990, Mr Pocklington attended a meeting at 5 Caledonian Road. Ms Steel was there. The group discussed the receipt of a red telephone bill from British Telecom for the sum of £50.79p. Ms Steel said that she was not able to pay this as she did not have the bank book which was believed to be in the possession of Mr Gravett. Mr Pocklington said that Mr Morris telephoned during the meeting and said that he would attempt to attend the meeting next week. In early May, 1990, King's asked Mr Bishop to attend a London Greenpeace meeting to be held at 5 Caledonian Road, on the 17th May, 1990.
Mr Bishop was not told the name of the client. He was instructed to observe and report on the meeting and its participants, in particular "Helen" (Steel) and "Dave" (Morris) who were described to him. In fact neither of them attended that meeting, but Mr Bishop went to other meetings thereafter.
Mr Bishop is middle aged with every appearance of dependability, for what that is worth. He knew that his appearance did not fit at the meetings of London Greenpeace which he attended and he never felt an accepted part of them. After each of his investigations, which took place almost weekly between the 17th May and the 27th September, 1990, Mr Bishop dictated notes into a handheld recorder as he drove away. He then typed up the notes, adding anything further which he recalled, and gave them to King's which made reports to the Plaintiffs' solicitors.
His written statements were made from the reports which followed his notes almost word for word. He said that his statements, made on 18th May, 1993, 20th May, 1995, and 14th May, 1996, were true to the best of his knowledge. He could remember some matters of which he gave evidence, but he had to refer to his notes or his reports for other matters.
On 13th September, 1990, Mr Bishop took away one letter written to London Greenpeace because he thought it might help identify the author as a member of the group. In the report of the 17th May meeting, which was made from Mr Bishop's notes, the layout of 5 Caledonian Road is described. There is a reference to an insecure window and the possibility of a switchboard in the premises being occupied twenty-four hours a day. It was suggested to Mr Bishop that he had reported these matters in case the agency which instructed him were interested in entering the London Greenpeace premises in order to obtain further information Mr Bishop denied this. He said he was just giving a general description of what he saw. I was not happy with that answer. I think he thought that someone might wish to explore the premises undetected. But I do not consider that either of those matters made Mr Bishop a dishonest man or a generally unreliable witness.
I have no reason to doubt the honesty of Mr Bishop's notes and his report as his best recollection when he made them. I thought that he was a generally reliable witness and, as with Mr Pocklington, I accept his evidence save where I indicate otherwise. Mr Bishop attended the meeting on the 24th May. He recalled some discussion of the British Telecom bill. He said that the telephone conversation with Mr Morris came about because Ms Steel said that Mr Morris had asked what was going to happen at next week's public meeting.
Mr Bishop did not hear Mr Morris speaking on the other end of the line, of course, but his belief from what he heard at his end was that Mr Morris was at the other end, trying to change the subject of the meeting to one which he wanted to discuss. Ms Laporte remembered this, and she recalled that the feeling was that if Mr Morris wanted to have any say at the meeting he should turn up, since involvement in the group involved attending the meetings.
Mr Gravett said that Mr Morris was attending meetings rarely at the time and he "used to sometimes phone up just to see what was going on, to find out what the group was doing or to say something''. It was felt that he should turn up if he wanted to be involved. He was detached from the group.
I accept that there was some feeling that Mr Morris should
turn up if he wanted his view of matters to prevail, but I do not accept that Mr Morris was detached from the group. He clearly wanted to have some influence: hence his telephone call.
On 7th June, 1990, Mr Pocklington attended a meeting of Greenpeace (London) at 5 Caledonian Road. Mr Pocklington's note and evidence was that Ms Steel and Ms Laporte were there when he arrived. They were engaged in answering letters. When the meeting got under way Ms Steel said that she had paid the telephone bill on behalf of the group. Ms Steel said that she did not like answering letters and that she rarely did so; but I accept Mr Pocklington's note and evidence that she did so on this occasion and I am satisfied that as a regular attender she must have done so on other occasions. Ms Steel said that if she answered letters they would be to do with the IMF. She was anxious to stress that the anti-McDonald's campaign was not the only one but she said that it was the most popular one with the public. If that was so there must have been many queries about McDonald's and I would expect her to join in answering them with the leaflet complained of. She said that enquiries about McDonald's were left for Mr Gravett to answer. Unless the enquiries were on specific points it is difficult to see what Mr Gravett could do which would not be equally well achieved by sending the inquirer a copy of the leaflet complained of. On 14th June, 1990, Mr Clare and Mr Bishop went to a meeting at 5 Caledonian Road. I accept that Ms Steel was not there. A telephone call was received from Mr Morris.
Mr Bishop noted that there was a letter from a man in Los Angeles who regularly sent the group information on what was happening in respect of McDonald's restaurants in America. Ms Laporte accepted that people wrote from different parts of the world to London Greenpeace because they wanted to keep London Greenpeace up to date on McDonald's information in their areas.
Mr Bishop learned that on the 16th June, 1990, there was to be an anti-poll tax march to Finsbury Park, supported by members of London Greenpeace, followed by a mini-fair in Finsbury Park, at which London Greenpeace was to have a stall. The day was to end with a London Greenpeace benefit concert night at a public house (The George Robey) in Seven Sisters Road.
Mr Bishop went to the mini-fair. Paul Gravett was at the London Greenpeace stall. On the table were several piles of various leaflets which he had seen at Caledonian Road meetings, and an A4 size poster advertising a day of action against McDonald's Restaurants on 16th October, 1990.
Mr Bishop thought that it was similar to a poster which I was shown, and I am satisfied from his evidence and from the circumstances that it was in the same form as the copy which I have. It is headed "Oct 16th. World Food Day: Worldwide Protests Against McDonald's (And all they stand for)". "McDonald's" is printed through a set of McDonald's distinctive arches. Down each side of the poster are six sets of McDonald's arches with the words "McHunger", "McTorture", "McWasteful", "McGarbage", "McDeadly", "McRip-off", McProfits", "McMurder", "McCancer", "McGreedy", "McDisease" and "McDollars''. The cow and person in a burger cartoon with " If the slaughter-house doesn't get you, the junk food will" in bubble-speak, appears in the middle of the page.
In the bottom left hand corner appear the words: "Produced by Greenpeace (London) to further the struggle by ordinary people for ecological and social revolution)'. Above that appears a box entitled "Local Details". The local details on my copy give a Harrogate P.O. Box in manuscript, but the box is clearly designed to be filled with any local groupie details and it must have been empty when the poster was printed. A box in the bottom right hand corner enjoins the reader to "organise now in your own area and protest against dangerous junk food, the murder of animals, destruction of rain forests, exploitation of workers, mindless consumerism and hype. Join the struggle for health, ecology, human rights, animal liberation and real life."
When cross-examined, Mr Gravett said that the poster might have been in use as early as June, 1990, getting local groups to generate support for the 15th October day of action. He wrote it. When re-examined, he said that the poster was originally designed in 1986 for the World Day of Action that year. The idea was to send a poster to each of a number of local groups for them to photocopy more.
Mr Bishop went on to the concert at the public house. Leaflets, including to the best of his knowledge the leaflet complained of, were placed on a table which had been erected just inside the door. People picked up leaflets as they wished. Mr
Bishop watched over the table for a time, but he did not hand out any leaflets.
Ms Laporte gave evidence that she remembered Mr Bishop helping to man "the stalls" at the George Robey, but neither
Defendant asked her whether the leaflet complained of was there, so there was no evidence to contradict Mr Bishop. In my judgment it is likely that the leaflet was there, so I am satisfied to the required standard that it was. Mr Bishop did not see either Ms Steel or Mr Morris at the mini-fair or the pub.
On the 28th June, 1990, Mr Clare went to a meeting at 6 Endsleigh Street. Ms Steel was there, but he did not record anything of relevance to McDonald' s. This was the first meeting attended by Frances Tiller, then Davidson, her maiden name. Mrs Tiller was employed as Secretary/Personal Assistant to the managing director of King's, doing secretarial and administrative work, but he asked her to attend meetings as he needed more people to cover investigations. Although she left Ring's employment on 29th June, 1990, she attended four London Greenpeace meetings thereafter, so she went to five meetings in all, the last being on the 20th September, 1990. She used the name 'Jan Goodman' at the meetings. She did not like the prying nature of the investigative work, but she did what she was instructed to do and she made notes of the meetings which she attended, usually when she got home an hour after the meetings ended. She said that her notes were likely to be pretty accurate. The Defendants called Mrs Tiller, and her evidence was not challenged on behalf of the Plaintiffs. In my view she was an honest witness and her evidence was likely to be accurate, based as it was on notes made shortly after the events which she recorded. Mrs Tiller's instructions were to look out for anything about McDonald's, but she was disappointed at how little it was discussed. She did not specifically remember seeing the six page leaflet complained of at any meeting which she attended but she did recall AN anti-McDonald's leaflets. She helped herself to the groups leaflets. None of the leaflets disclosed with her statement and reports refer directly to McDonald' s.
She said that her notes of the 28th June, 1990, meeting were
accurate. They reveal that Paul Gravett, Jane Laporte and Ms Steel, among others, were present. Ms Steel was involved in the discussions which took place and expressed an extremely radical viewpoint, including the overthrow of the government and the total destruction of the present social system. Both Ms Steel and Ms Laporte gave evidence that they did not think that Ms Steel would have said this, although Ms Steel said that she might well have said something about wanting to see a society without government and without multinationals, exploitation and oppression. Ms Laporte said that in her opinion Ms Steel did not have an extremely radical viewpoint. A society without government seems a pretty radical proposal to me, and I believe that Ms Laporte thought that she was protecting Ms Steel, in case I might disapprove of her radical point or view. According to Mrs Tiller, Ms Steel did not mention McDonald' s. The only reference to McDonald's was made by a man called Jonathan who referred to previous anti-McDonald's protests and the 15th October, which, he said, had become the annual Anti-McDonald's Day. He explained that the group consisted of anyone who chose to involve himself or herself in the activities of the group which preferred not to have any specific structure or administration, although Mrs Tiller did see a red book in which minutes were kept. Jonathan may well have been Jonathan O'Farrell who was one of the original Defendants to the action.
On 5th July, 1990, Mrs Tiller went to a meeting at 5 Caledonian Road. Ms Steel, Jonathan and Jane Laporte were there, among others. Matters discussed at the meeting included a preference for national mailing rather than an international mailout, due to cost, and a forthcoming fayre which Mrs Davidson understood to be the annual Anti-McDonald's Day Fayre on the 16th October. It was decided that the next meeting would be devoted to discussing plans for the fayre. Jonathan referred to correspondence with a contact in New Zealand who had sent publicity material put out there by McDonald' s. A time came when Jonathan who had been leading the proceedings, left. Thereafter Ms Laporte and Ms Steel took the lead. There were no anti-McDonald's leaflets.
On the 12th July, 1990, Mr Clare went to a meeting at 5 Caledonian Road. Three other people were there (not Ms Steel or Mr Morris) and the four of them spent their time answering letters. There were many letters from all over the world asking
On 19th July, 1990, Mrs Tiller went to a meeting at 5 Caledonian Road. Mr Morris arrived just before her. It was the first time she had met him. She had heard that he had some family problems and had not been attending meetings. They were let in by Jane Laporte who clearly knew Mr Morris well. I find this inconsistent with Ms Laporte's own evidence that she rarely saw Mr Morris after August, 1989, and that she had really only got to know him "through the last few years of doing this case". Later in her evidence she said that she had seen him involved in poll tax activities. She gave me the impression that she was trying to help Mr Morris by distancing him from the groups activities. Paul Gravett, among others, was at the meeting, but not Ms Steel.
During the meeting Mr Morris referred to an anti-borders demonstration in Poland and to his dedication to the anti-poll tax movement. The forthcoming fayre was discussed. Mr Morris said that the first fayre had been an anti-McDonald's day about six years before and that they had had an annual anti-McDonald's day every year since. A man called John explained that this was now changing and the fayre was to be a London Greenpeace Fay-e outlining all their areas of interest, but the anti-McDonald's campaign would continue as "everyone hates McDonald's". Various possible workshops for the fayre were mentioned. McDonald's was not one of them. Mr Morris had charge of the minute book. He allowed Mrs Tiller to read the minutes of the last meeting on the 12th July. They referred to a letter from Mew Zealand about McDonald's, which is some support for Mr Clare's account of that meeting, and I accept that part of his evidence supported as it was by the minutes and accepting as it did that he answered letters himself.
On the 26th July, 1990, Mr Clare and Mr Bishop attended a meeting at 6 Endsleigh Street. Ms Steel was there. Mr Claire said that she arrived late with Mr Gravett and the meeting then broke up. Before she arrived, time had been spent answering letters, including requests for information about McDonald' s.
The meeting started at 7 p.m. and everyone left at 9.40 p.m. Mr Clare accepted that during that period he was answering letters with everyone else and that the likelihood was that some of the responses which he sent included anti-McDonald's leaflets. Ms Laporte who was at the meeting, said they would have been
general enquiries about McDonald's and the A5 leaflet would have been enclosed in reply.
On 2nd August, 1990, Mr Bishop went to a public meeting at 5 Caledonian Road. It was attended by nine or ten people apart from Mr Bishop, although they did not all arrive at the same time. He made a report of the meeting. Although it is dated the 3rd August, 1990, I think that it must have been made on the 2nd August, because an addendum which Mr Bishop made on the 3rd August is described as an "addition to the existing report dated 2nd August, 1990". Although the report and addendum do not include some of the matters outlined in Mr Bishop's statement made in May, 1993, and in his oral evidence, I believe that the report prompted a good recollection of the meeting and I accept his account of it.
According to Mr Bishop, the meeting began with Mr Morris, Mr Gravett and Ms Steel, whom Mr Bishop described as "the lead persons in the group" commenting on letters which they had received since the last meeting. He said that they were the most vociferous and participated the most. Although it was the first time Mr Bishop had come across Mr Morris, he thought that they were the lead members because decisions which were made by them seemed to be followed by the others. This was consistent with Mr Pocklington's evidence that Ms Steel and Mr Morris were "core members" of the group and major participants in its activities.
Mr Morris asked Mr Bishop to answer a letter from West Germany asking for more information about the group. He did so be sending a copy of the aims and objectives leaflet. Although he did not say that Mr Morris asked him to put that leaflet in the response, Mr Morris must have known that the aims and objectives leaflet, with its acclamation of the anti-McDonald's campaign and the leaflet complained of, was the standard response to requests for information about the group. In Mr Bishop's experience such letters asking for information continually arrived at the office. After the discussion about the letters the main point of the meeting was the question of which groups should be invited to run stalls at the Greenpeace (London) Fayre on the 17th October. In my experience of Mr Morris it has the ring of truth that Mr Morris objected to any organisation which was a ''business'', but he had to compromise over the beer stall.
Mr Bishop said that Mr Gravett, Mr Morris and Ms Steel spent some time discussing the design of the leaflet to promote the fayre. Although this did not appear in Mr Bishop's report, it is clear that such a discussion took place. I have a copy of the leaflet which was produced. It is headed: "the London Greenpeace fayre '90". It bears a star with ''3rd Great Year. Incorporating the Anti-MacDonald's (sic) Fayre". Mr Bishop recalled that part of the discussion concerned the question of whether the words should be placed within a star or circle.
Ms Steel took issue with the details of the discussion. She was not prepared to accept that she did more than chip in the odd comment at the meeting. She said that she did not participate in the discussion about the design of the leaflet at all. She did not contribute to it whatsoever. This was a big claim to make nearly six years after the meeting, when she had no note of the meeting at all. Ms Steel is not slow to have he- say. I believe that Ms Steel was trying to play down her interest in McDonald's and I prefer Mr Bishop's account.
Mr Bishop recalled that it was said that London Greenpeace was to issue a press statement calling on any interested person or group to organise anti-McDonald's pickets on 16th October, 1990. Paul Gravett was to produce a new up to date "factsheet".
I have a copy of a press release dated 28th August, 1990, which must, I believe, be the press statement referred to at the 2nd August, 1990, meeting. Across the top of the press release appear the words Greenpeace (London)" and a round emblem with "Greenpeace London" in its outer circumference and a broken gun in the middle. A line across the gun makes an 'A' in the circle of the emblem. Underneath is printed the address and telephone number: "5 Caledonian Road, London N.1. tel. 071 837 7557", and the heading "Oct 16th: World Day or Action Against McDonald's". The text of the press release reads as follows:
Since we initiated the campaign against McDonald's over five years ago, it has grown dramatically to become a nationwide and worldwide movement. McDonald's is being opposed for many reasons:
destruction of the world's beautiful rainforests for land to graze cattle to turn into hamburgers, the marketing of food saturated with dangerous chemicals (it has been estimated that food additives cause 1300 cancer deaths each year in this country alone), the denial of workers' basic rights (anyone trying to join a union is sacked), and the mass murder of animals to turn into 'food' (they buy more beef in the USA and Britain than anyone else).
Recently, McDonald's has started trying to present a 'green' image intended to win public approval. They have issued three 'McFact' cards more accurately described as 'McLie' on deforestation, the ozone layer, and food hygiene. they contain a mixture of plain lies and distortions and in order to expose their dishonesty for what it is we shall be updating our famous factsheet, 'What's wrong with McDonald's: everything they don't want you to know' in time for Oct. 16th.
We are calling on groups to picket their local branch of McDonald's (or where there is not one, Burger King, Wimpy etc) on Oct. 16th or the nearest convenient date. For details of this year's campaign, including how to obtain leaflets, please send an see to: London Greenpeace, Caledonian road, London N.1".
I also have a copy of a second press release dated 28th August, 1990, with the same Greenpeace (London) heading, emblem and address, but entitled "Oct. 27th: The London Greenpeace Fayre''. Mr Gravett said that he wrote it. The first two paragraphs of the text read:
The change of title reflects a change of emphasis. We are broadening out the scope of the Fayre to include all the struggles which are now taking place against oppression throughout the word".
'We believe this year's Fayre will be an enormous success and attract at least 3,000 people. For more details contact London Greenpeace at the address above".
According to Mr Bishop, Mr Morris did not seem to place a lot of importance on McDonald's at the 2nd August, 1990, meeting. Mr Bishop recalled Mr Morris arguing that the Fayre should not be called the "Anti-McDonald's Fayre". He said that it just happened to be McDonald's that got chosen to represent the multinationals at the beginning of the campaign. Mr Morris stressed this in cross-examination of Mr Bishop to demonstrate that he was not particularly interested in McDonald' s. To my mind it is more significant in demonstrating that he was in at the beginning of the anti-McDonald's campaign. I accept that by this time Mr Morris had interests in other matters such as the poll tax and state boarders, and his interest in McDonald's, specifically, may have been less than it was. But McDonald's was still a multinational employing a large number o people and therefore, I believe, an object of Mr Morris's critical attention.
Mr Bishop also noted that a new up-to-date factsheet about McDonald's was to be produced by Paul Gravett in time for the anti-McDonald's picket on the 16th October-,1990, and that it was generally felt that the recent statement by McDonald's in relation to their green policies would be effectively countered in the new handout. Ms Laporte accepted that Mr Bishop's note about the press statement and up-to-date Act sheet was a fairly accurate account.
There was no suggestion that either Ms Steel or Mr Morris ever expressed disagreement with Mr Gravett's plan for a new factsheet. The plan confirms my view that the group thought it important to have an anti-McDonald's leaflet which was more substantial than the single sheet AS lea-let to hand out on the 16th October worldwide day of action against McDonald' s.
On the 9th August, 1990, Mr Bishop and Mr Clare both went to a meeting at 5 Caledonian Road. Mr Bishop's account was that most of the discussion concerned the forthcoming fayre, but it was indecisive because Ms Steel, Mr Morris and Mr Gravett were not there and there was concern that any decisions would be overruled by them if they disagreed. When they were at meetings, decisions seemed to be taken. When they were not present, not much seemed to happen.
Mr Clare noted that he might be asked to run the video section at the fair and he gave evidence that he believed he said he would. He may even have volunteered to do so.
Ms Laporte who was at both the 2nd and 9th August meetings said that she was involved in the organisation of the 1990 fayre. She said that neither Ms Steel nor Mr Morris was involved. I am satisfied by the evidence of Mr Bishop that they were both involved in discussions about its organisation and in decisions about advance publicity for it. Again, I believe that Ms Laporte was trying to protect Ms Steel and Mr Morris.
On 16th August, 1990, Mr Bishop went to a meeting at 5 Caledonian Road. Ms Steel was there. Most of the meeting was taken up with discussion of the approaching fayre.
On the 23rd August, 1990, Mrs Tiller went to a meeting at 5 Caledonian Road. On instructions, she took Ms Hooker with her to introduce her to the group. When Mrs Tiller arrived 'John' and 'Jonathan' were making telephone calls organising the fayre. Ms Steel arrived during the reading of the mail which included a letter and enclosures relating to McDonald's from Jonathan's New Zealand contact. The fayre was discussed but no decision was made.
On the 30th August, 1990, Mr Bishop went to a meeting at 6 Endsleigh Street. Ms Steel was there.
On the 6th September, 1990, Mr Clare went to 5 Caledonian road. Only Jane Laporte was there. He reminded her that he would do videos at the fair. That was the last occasion which Mr Clare noted. Ms Laporte agreed with his note of that occasion. She said that he did not show any great interest in the anti-McDonald's campaign, but he was eager to help organise videos at the fayre so he was involved in the group.
On 13th September, 1990, Mr Bishop attended a meeting at 5 Caledonian Road. Ms Steel, Ms Laporte, Jonathan, another man and Ms Hooker were there. During the reading of correspondence, a letter concerning McDonald's was read out. Several references were made during the meeting to various pickets that had been organised by groups other than London (Greenpeace) for 16th October, World Food Day. These appeared to be mainly concerned with picketing McDonald's restaurants. The group agreed to picket either Charing Cross McDonald's or one of the Oxford Street branches from 42 noon to 2 p.m., followed by a picket at the main headquarters of McDonald's from 2 p.m. until 4 p.m. Then there was to be an evening picket of, probably, the Tottenham Court Road restaurant. Mr Gravett whom Ms Laporte
described as "a main figure in the anti-McDonald's campaigns, was noted as arriving when the meeting was being wound up. Ms Laporte accepted that she reported to the meeting on a picket held by Hackney and Islington Animal Rights at McDonald's restaurant, but she would not agree that she made the report because hostility to McDonald's was a shared interest of the two groups. This says little for her credibility, in my view. She did agree that the idea of getting other groups to picket McDonald's restaurants was to get a nationwide protest into action.
Ms Hooker did not give evidence, but reports made by her were available and Ms Steel was asked by counsel for the Plaintiffs about a sentence in Ms Hooker's report of the 13th September meeting. It read: Helen produced a book on McDonald's by John F. Love, entitled Behind the . . "
In fact its full title is "Behind the Arches" and it was frequently referred to by Ms Steel and Mr Morris when cross-examining McDonald's witnesses in the hope of obtaining confirmation from witnesses of statements in the book, which might be used against the Plaintiffs in this case. Ms Steel remembered having the book. She said that she "picked it up in a secondhand book shop. " She bought it, she said, "Because it was going cheap: because I like reading.. When pressed about whether she was interested in McDonald's she said, `'I did not say I was not interested in McDonald's, and then " It was a topic which I had some interest in. " She looked uncomfortable as a normally honest person might when giving evasive answers.
On 20th September, 1990, Mr Bishop attended a meeting of Greenpeace (London) at 5 Caledonian Road. Ms Steel and Mr Morris, Mr Gravett, Ms Tiller and Ms Hooker were there among others. Most of the evening was taken up discussing the London Greenpeace Fayre and who was to do what at the event. Paul Gravett stated that he would have the new McDonald's leaflet ready in time for 16th October. He said that the Hackney Solidarity Group had had 10,000 anti McDonald's leaflets printed, using last year's artwork from London Greenpeace. They sounded like the 10,000 leaflets which Mr Pocklington recalled mention of at the meeting on 15th March, 1990. Mr Gravett said in evidence that they were "the 1989 AN leaflets''. Two firms were mentioned as the printers of various leaflets. One of them also seemed to have a duplicating and photocopying service available on an own use basis. Mr Morris and Mr Gravett both indicated
that they had used these services to print various leaflets themselves.
Mr Bishop could not say what form the 10,000 anti-McDonald's leaflets took, but they bore the wrong date for the fayre. Mr Gravett agreed with this in his evidence and said that they decided to alter them by hand.
The report based on Mr Bishop's notes of the 20th September recorded that Ms Steel was organising the printing of leaflets for the London Greenpeace Fayre, but she gave evidence that the leaflets which she was organising related to the IMP. Having taken instructions from Mr Bishop, counsel for the Plaintiffs said that Mr Bishop had no useful further recall, and in those circumstances I accept Ms Steel's account of the leaflets.
Mr Bishop's notes of the meeting recorded that Mr Gravett spoke of a picket at a Kentucky Fried Chicken store the following day and that Mr Morris said that he was getting too old for that sort of thing. It was when asked by Mr Morris to verify this that Mr Gravett volunteered that Mr Morris was the elder statesman of the group.
Mrs Tiller also went to this meeting. Brian Bishop opened the door for her. She Anew he was a private investigator. In the office she found Ms Steel, Mr Morris, Mr Gravett and two others folding leaflets and putting them into envelopes for a "mail outs. When the meeting began Mr Morris led the proceedings and read out the contents of the mail in-tray while the others including Mrs Tiller herself kept on folding leaflets and putting them in envelopes. Mr Gravett said that 'the McDonald's leaflet, had been left out but one of the others said it was not all that important.
During his evidence Mr Gravett referred to the meeting on the 20th September, 1990. He said that the Mail Out was done by the group leading up to the World Day of Action against McDonald' s. He thought that the McDonald's leaflet which was omitted was the single sheet AS leaflet, and I see no reason to doubt that.
A leaflet headed "Anti-McDonald's campaign 1990", which Mr Gravett wrote, was put in the mailout. It was in much the same form as the 1989 campaign document. It contained a short summary of the history of the campaign and some of the issues involved.
It referred to the great success of the "Anti-McDonald's Campaign" and to the famous factsheet What's wrong with McDonald's? Everything they don't want you to know". Like the previous year's leaflet it invited other groups to send a stamped addressed envelope for a copy. It made the same point about a shortage of copies. It said that "we are in the process of revising the factsheet". It asked for details of what other groups were doing against McDonald' s. The name of London Greenpeace with its address and telephone number appeared at the foot.
Ms Steel said that by August, 1990, there were Most definitely" no factsheets left. But the Anti-McDonald's Campaign 1990 leaflet must have been produced at about that time and when it was pointed out to Ms Steel that it invited other groups to send for copies of the factsheet her explanation was that Mr Gravett could have been copying them.
It was the Plaintiffs' case that copies of the leaflet complained of were made from time to time, photo or printed, if stocks ran low. Mrs Tiller said that the forthcoming fayre and the input of the main members on the day, were discussed. Various topics listed on a fly poster were raised in turn. I am satisfied that it was the poster to which I have already referred, which announced "the London Greenpeace fayre '90 - 20 years of struggle for change n, on Saturday, October 27th, and which had the star and reference to *Anti-MacDonald's fayre". The listed topics included defending the environment and animal liberation. It referred to a creche, and Ms Tiller told the 29th September meeting that she would try to organise a creche.
According to Mrs Tiller, Mr Gravett said that he was to be a guest speaker as the representative of the group on the subject of "McDonald's: Everything they don't want you to know", at a public meeting of the Hackney & Islington Animal Rights Campaign on 1st October. He produced a poster for the meeting. Mr Gravett gave evidence that it was his idea to speak at the meeting. He merely told the others present what he was going to do, but there was no suggestion that anyone objected to his plan, and it is clear to me that it was accepted as part of the continuation of London Greenpeace's anti-McDonald's campaign.
On 27th September, 1990, Mr Bishop went to a meeting at 5
Caledonian Road. Ms Steel was there. She said that she, Mr Morris and Mr Gravett had been served with writs and that they were taking legal advice. He thought that was his last meeting.
The usual World Day demonstration outside McDonald's head office and the annual fayre took place in October, 1990. There was no suggestion that the leaflet complained of was distributed on either occasion, which is hardly surprising in the light of the writs. Some of the single sheet AS leaflets with the previous year's artwork and the wrong date and time for the fayre, still described as the "Anti-McDonald's Fayre" were distributed. A video film of the demonstration shows both Ms Steel and Mr Gravett sitting down to write on sheets of paper, and the obvious conclusion is that they were correcting the date and time of the fayre on copies of the leaflet. Ms Steel would not accept that she did this. Then she said that if she was correcting leaflets, she probably did so because someone told her "that they were fed up with doing it themselves, would I do a few. " In my view she was trying to avoid making any concession to the Plaintiffs' case.
The naming of the fayre as the "Anti-McDonald's Fayre" remained uncorrected on the copy produced to me. Presumably this was because the distinction from "London Greenpeace Fayre" was lost on whoever corrected the date.
There was evidence that Ms Steel and Mr Morris were involved in a number of anti-McDonald's activities after October, 1990, but I will refer to only two occasions where publication of the leaflet complained of was specifically alleged against Ms Steel and Mr Morris. There is no doubt in my mind that whatever antagonism Ms Steel and Mr Morris felt towards the Plaintiffs before the service of the writs, and in my view it was considerable, was increased with the commencement of proceedings, so I do not find evidence of their conduct in generally attacking McDonald's after the service of the writs particularly helpful in deciding the issue of publication, although it is relevant to their counterclaims.
The first of the two situations involved the alleged promotion by Ms Steel and Mr Morris of a new Internet website which, it was alleged, reported the trial and carried the leaflet complained of in full. It was accepted by Ms Steel that she and Mr Morris helped to activate the website in a public promotion, but whether Ms Steel or Mr Morris bore any responsibility for it
carrying the leaflet complained of, if it does carry it, remained unclear.
Secondly it was alleged that Ms Steel and Mr Morris were responsible for the publication of copies of the leaflet complained of, to visitors to court on 30th June, 1994, the third day of the trial.
The allegation depended upon the evidence of Mr Matthew Howse, an assistant solicitor with Barlow Lyde and Gilbert, the Plaintiffs' solicitors, who attended court out of general interest as he had done some work on the case earlier. His account was that as the Plaintiffs' side of the Court was crowded he sat on the Defendant's side, on the public benches towards the back. An elderly couple who appeared to be American tourists were sitting a row or two in front of him. He noticed that the woman of the couple was holding an A4 size copy of the leaflet complained of and that in a row further in front still, the row behind the Defendants, was a young man with a pile of similar copies. Mr Howse was clear that it was a pile of similar copies, not just a random pile of paper.
When Mr Rampton first raised what Mr Howse was alleged to have seen, Mr Morris seemed more concerned with establishing whether he and Ms Steel were entitled to give copies of the leaflet complained of to people inside the courtroom, press or otherwise, than to dispute that this had happened. Ms Steel did say that she and Mr Morris were not admitting what had been alleged in any way.
When Mr Howse eventually gave evidence two years later, he was cross-examined to test his recollection and whether he could really see what he said he saw. Ms Steel's evidence was that she certainly did not bring copies of the factsheet to court to distribute to the press (or presumably the public) and she had never seen a pile of factsheets, photocopies or originals, behind her and Mr Morris on the benches. It was her recollection that their legal advisors had various papers to do with the case in front of them when they were sitting behind Ms Steel and Mr Morris. It was implicit in her evidence that there was no more than perhaps the odd copy of the factsheet in court behind her.
I have no hesitation in accepting Mr Howse's evidence that there was a pile of photocopies of the leaflet complained of in court, behind Ms Steel and Mr Morris, and that a visitor had such
a copy. I have no reason to doubt his honesty. What he saw clearly made an instant impression on him as one would expect of someone who had worked on the case.
The obvious inference is that a pile of copies of the factsheet had been brought to court for distribution and I believe that both Ms Steel and Mr Morris must have known that. This does not help me specifically so far as publication of the factsheet before September, 1990, is concerned. The copies were probably brought to Court because Ms Steel and Mr Morris thought that they could with impunity hand them to anyone who attended the public trial. But Ms Steel's denial that copies were there, when I believe that she knew that they were there, adds to my impression of evasion of the truth by her on occasions when the question of association with the leaflet complained of came up in her evidence.
Ms Steel and Mr Morris made general points in their cross-examination of the Plaintiffs' witnesses and in their final submissions.
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 focused 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.
Both Ms Steel and Mr Morris relied heavily upon the evidence of Mr Gravett who was clearly a leading light in the anti-McDonald's campaign at the material time, both as a member of London Greenpeace and also as a member of Hackney and Islington Animal Rights.
Mr Gravett gave evidence of the extent of Ms Steel's and Mr Morris's involvement, or lack of it, in London Greenpeace activities and the anti-McDonald's campaign. When giving evidence in chief he said that Ms Steel and Mr Morris were not heavily involved in the Anti-McDonald's campaign. When being
cross-examined towards the end of his evidence he said that McDonald's was one of the campaigns of London Greenpeace and certain individuals took part in it and others did not and Ms Steel and Mr Morris did not. He went on to say they were not involved in organising, but in my view his statement that Ms Steel and Mr Morris did not take part in the anti-McDonald's campaign gave away his anxiety to help them both. He said the campaign was his idea, as if it was his alone, which I do not accept.
Mr Gravett gave other answers which were calculated to distance Mr Morris, in particular, from the anti-McDonald's campaign. In my judgment his evidence was unreliable concerning the initial production of the leaflet complained of, the quantities of copies of the leaflet complained of, which were available from time to time, and the lack of involvement of Ms Steel and Mr Morris in London Greenpeace's anti-McDonald's campaign.
I reached the same conclusion in relation to Ms Laporte's evidence of the extent of involvement of Ms Steel and Mr Morris in London Greenpeace meetings and the anti-McDonald's campaign during the period from October,1988, to October, 1990, when she attended London Greenpeace meetings herself. I have already made some comment to this effect. I thought she was unreliable about the involvement of members of the London Greenpeace group which in my view included Ms Steel and Mr Morris, in the anti-McDonald's campaign. Her unwillingness to accept the reason for her 13th September, 1990, report on an anti-McDonald's picket organised by Hackney and Islington Animal Rights was indicative of this.
According to Ms Laporte, although Ms Steel attended meetings fairly regularly throughout the 1989 to 1990 period, she was never heavily involved with the McDonald's campaign which consisted of not much more than calling for an Anti-McDonald's Fayre during that period, even renamed the London Greenpeace Fayre in 1990. In my judgment this plays down the campaign. According to Ms Laporte, Mr Morris did not attend meetings regularly throughout 1989 and 1990. He was never heavily involved with the anti-McDonald's campaign during the time that Ms Laporte was in the group.
Even on face value, Ms Laporte's evidence allowed for Ms
Steel and Mr Morris being involved in the anti-McDonald's campaign to some extent, even if not 'heavily by her account. I have already indicated that I found Ms Steel's evidence unsatisfactory on a number of topics, for instance the part which she played in the meeting on the 2nd August, 1990, the extent of her interest in "Behind the Arches and her refusal to accept that she was altering single sheet A5 leaflets at the October, 1989, head office demonstration. However honest Ms Steel may normally be, her evidence and her conduct of the trial satisfied me that she found the idea of conceding any point made on behalf of the Plaintiffs' very difficult, even if the point had merit in all good sense. In my judgment she was not a reliable witness on the issue of publication of the leaflet complained of, so far as she and Mr Morris were concerned.
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, AS 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 groups 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, 1990, 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 publicist World Day and the group's fayre in October, 1989. 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, 1990, 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, 1990, 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, 1990, World Day and fayre, prepared in the Summer of 1990.
Ms Steel's responsibility for publication of the leaflet in England and Wales coincided with that of Mr Morris from early 1988, but she has not been shown to be responsible for publication of copies of the leaflet before that.
That leaves the question of whether the Plaintiffs or either of them consented to publication or any significant part of the publication of the leaflet by Ms Steel or Mr Morris, so as to deprive them of their cause of action or any part of it.
It is a defence to an action for defamation that the Plaintiff consented to the publication of which he now complains, by participating in or authorising it. Thus, if the Plaintiff has consented to the publication of the words used substantially as they were, there is a good defence to the action. Proof of consent must be clear and convincing, since it is inherently unlikely that a party, albeit a company, has consented
to being libelled.
The consent may be expressly given or it may be implied, that is inferred from what the Plaintiff has said or done or what its agents have done with its express or implied authority. But if it is sought to make the inference from enquiries instigated by the Plaintiff, a distinction is to be drawn between inquiries initiated for the purpose of leading a Defendant to make defamatory statements which he would not otherwise have made (in which case the Plaintiff cannot complain), and inquiries initiated for the bona fide purpose of tracing defamatory statements to their source.
There was no evidence that anyone employed by either Plaintiff in this case expressly authorised or consented to publication or any act of distribution of the leaflet complained of or of any other anti-McDonald's material. I do not consider that any inference of consent to publication can be drawn from the passage of time between about 1987, when the Plaintiff's through their officers first became aware of the leaflet complained of, and September, 1990, when they sued; nor from the fact that they chose to complain about parts only of the Veggies leaflet which was based upon the leaflet complained of. Subject to the law on limitation of actions, the Plaintiffs were entitled to take time to decide whom if anyone to sue over what, if any, defamatory material, and to judge for themselves when the moment for any legal action had come. -
The Defendants real case was that consent to publication was to be inferred from the nature of the Plaintiffs' instructions to enquiry agents and from the activities of those enquiry agents with, it was said, the approval of the Plaintiffs. The Plaintiffs relied upon the following matters in particular.
Mr Nicholson's instructions given to the two fires of enquiry agents were that they were to infiltrate London Greenpeace. Such infiltration would necessarily involve participation in the activities of the group, including the anti-McDonald's campaign and the publication of the leaflet as part of the campaign.
In pursuit of those instructions individual enquiry agents
did participate in London Greenpeace activities, the anti-McDonald's campaign and, by their own accounts, the distribution of the leaflet complained of. For example, on the 23rd November, 1989, Mr Pocklington volunteered to spend a day helping Andrew Clarke and a man called John to answer letters, and he did so on the 29th November, 1989. Some correspondents were sent the leaflet complained of. On the 24th May, 1990, Mr Bishop noted that Mr Pocklington and another man were answering letters when he arrived.
On the 1st March, 1990, Mr Pocklington noted that Mr Clare and others answered letters, which induced sending off a variety of leaflets including "the anti-McDonald's leaflets'.
Mr Clare's account of the 19th April, 1990, was that he and Ms Laporte answered letters at her suggestion, putting anti-McDonald's leaflets into the envelopes. He answered letters and included anti-McDonald's leaflets in the replies, on the 12.h and 26th July, 1990.
On the 16th June, 1990, Mr Bishop helped to man the London Greenpeace stall at the George Robey, from which people collected copies of the leaflet complained of.
Ms Tiller helped to fold leaflets and put them in envelopes on the 20th September, 1990, and she said that she would try to organise a creche at the October fayre. She did this to show willingness to get involved with the group. Mr Clare offered to show videos at the" fayre.
There was a lot of evidence that Ms Hooker appeared to be an enthusiastic participant in London Greenpeace and Hackney and Islington Animal Rights Group's anti-McDonald's activities. She started the 1990 mail out with a member of the group, with whom she was said to have formed a relationship. I saw video film and still photographs of Ms Hooker handing out single sheet AN "What's wrong with McDonalds?" leaflets at the October, 1990, head office demonstrations.
London Greenpeace was a small group and enquiry agents made up a substantial proportion of those present at poorly attended meetings.
The defence case was that the enquiry agents' attendance encouraged the group to keep going. Ms Laporte said that their
attendance made her feel that the group was on a roll again. Ms Steel went so far as to say that the meeting about the future of the group in January, 1990, "was actually because attendance had tailed off to such an extent that people were concerned that the group might not carry on. So, obviously, when the private investigators were coming we did not know they were private investigators, they expressed interest in the group and the anti-McDonald's campaign and....they basically kept the numbers up and kept the group going."
However, I accept the evidence of Mr Preston and Mr Nicholson that the sole purpose of instructing the firms of enquiry agents was to find out who was responsible for the publication of the leaflet so that they could stop it, and I accept Mr Nicholson's evidence that he told the directors of each of the two firms that the method of operation was for them to decide but that the agents were not to act as "agents provocateurs" .
Mr Nicholson sensibly took the view that if the attempt to stop the leaflet complained of was to stand any prospect of being effective he would have to identify as many as possible of the individuals in London Greenpeace, who were responsible for its publication, since action against some only might leave others feeling free to continue publication. Moreover, the enquiries would have to continue long enough to obtain cogent, admissible evidence of publication of the leaflet and of participation in the anti-McDonald's campaign by such individuals as were identified. -
Mr Pocklington said that he was never instructed to provide or encourage anti-McDonald's activities. The anti-McDonald's campaign, including distribution of the leaflet complained of and other anti-McDonald's leaflets, continued throughout the time he attended London Greenpeace meetings without any encouragement from him.
Mr Bishop gave evidence to the same effect. He said that he only participated actively at the specific request of members of the group and that it was quite untrue to suggest that the group's interest in or enthusiasm for the anti-McDonald's campaign was waning or withering away.
Mr Russell denied encouraging in any activity relating to McDonald' s.
Mr Clare denied being instructed to encourage anti-McDonald's activities.
There was no evidence that any enquiry agent actually shared the anti-McDonald s aims of London Greenpeace.
In my judgment it is clear that the enquiry agents did what they did the easier to remain apparent members of the group in order to pursue their investigations which were in fact directed by the Plaintiffs at obtaining evidence in order to stop publication of the leaflet complained of.
I do not believe that Ms Steel or Mr Morris or Mr Gravett needed any encouragement to continue the anti-McDonald's campaign and publication of the leaflet between October, 1989, and September, 1990, or at all: nor did the group need any encouragement to keep going. I reject Ms Steel s evidence to this effect. From January, 1990, onwards there was talk of less anti-McDonald's activity, but Mr Gravett repeatedly said that he was going to write a new pamphlet on the anti-McDonald's theme, and it was said that the October, 1990, fayre would celebrate twenty years of the group's activities.
The poster which Mr Bishop saw at the George Robey on the 16th June, 1990, made the group's continuing zeal for attacking McDonald's clear. The enquiry agents had nothing to do with that. One of Ms Steel's and Mr Morris's points in relation to the litigation as a whole was that the Plaintiffs could not resist the temptation to suppress any material which was critical of them. Whether or not this point was fully justified, it is quite clear from this litigation and from the Plaintiffs' threats to sue others and from proceedings against others in other actions, that they take very unkindly to defamatory material which their executives believe to be untrue.
The whole idea of either Plaintiff consenting to, let alone encouraging, the publication of the leaflet complained of is bizarre. Counsel for the Plaintiffs said that they did not sue upon any publication of the leaflet complained of, actually made by an enquiry agent. So I will not hold Ms Steel or Mr Morris liable for any such publication by an enquiry agent sending off
a copy of the leaflet complained of when answering correspondence, for instance. But save to that extent the defence of consent to publication of the leaflet fails. -