Day 083 - 06 Feb 95 - Page 26


     
     1        handle and the goodies come tumbling out of the fruit
     2        machine, now is time, we feel, where they must understand,
     3        if we are right about the law, that is not so.  This
     4        applies, in particular, to documents outside this country,
     5        Brazil, Costa Rica and the USA I see are mentioned on
     6        Mr. Morris' list.  I see it mentions Jarrets, for example.
     7        In his latest list he mentions -----
     8
     9   MR. JUSTICE BELL:  There a whole load of areas it might apply
    10        to.  It might apply to the use of soya in Germany and all
    11        sorts of things like that.
    12
    13   MR. RAMPTON:  Yes, indeed.
    14
    15   MR. JUSTICE BELL:  It is really quite far-reaching.
    16
    17   MR. RAMPTON:  It would apply, if we are right, for example, to
    18        the documents that Professor Jackson saw at McKey's and Sun
    19        Valley, even supposing that your Lordship thought it right
    20        we should disclose those anyway, but that is a separate
    21        question.
    22
    23   MR. JUSTICE BELL:  There was no discussion on this at all when
    24        the matter came before the Court of Appeal principally on
    25        the issues of striking out parts of Defendants' case and
    26        trial by jury, there was no mention by a side wind of this
    27        potential problem or issue?
    28
    29   MR. RAMPTON:  I cannot actually remember.  Certainly there was a
    30        concern in my head that a basis for a pleading so flimsy as
    31        to be transparent could act as a lever for a torrent of
    32        discovery.  That certainly was a single concern of mine
    33        and, if anything has proved me right, it has been the
    34        conduct of this case.  But that was not a submission that
    35        I was able to make in the Court of Appeal because your
    36        Lordship well knows, alas, sometimes the Court of Appeal is
    37        more concerned with principle, and perhaps rightly, than it
    38        is with practicalities.
    39
    40        However, there it is; we have made a discovery in this case
    41         -- I use "discovery" in its broad sense -- which goes, if
    42        we are right about the law, far beyond what was required of
    43        us.  From now on, if we are right -- it may be a good
    44        reason why your Lordship should now decide whether we are
    45        right or not -- we intend to put up the shutters as and
    46        when required.
    47
    48   MR. JUSTICE BELL:  Yes, thank you.  Where do you want to go?
    49        I think you have heard me say enough to realise that it is
    50        a potentially important point of principle. 
    51 
    52   MR. MORRIS:  I think what would you like us to do?  Would you 
    53        like us to put up the argument now?
    54
    55   MR. JUSTICE BELL:  Are you in a position to argue back to what
    56        Mr. Rampton has said about the test which should be applied
    57        which, essentially, it seems to me, are by his argument
    58        contained in what Lord Justice Shaw and Lord Diplock said,
    59        firstly, in the Court of Appeal and, secondly, in the House
    60        of Lords in the Lonrho case?

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