Day 083 - 06 Feb 95 - Page 14
1 Lords, leads to this question: Does the right exist, if it
2 exists at all, for all purposes, or does it only exist for
3 the purposes for which it has been conferred or obtained?
4
5 My Lord, we submit that that question answers itself. This
6 is particularly so perhaps in relation to contractual
7 right, as your Lordship will see in a moment. A
8 contractual right exists only for the purpose of carrying
9 out the contract.
10
11 The way it is put in the later authorities in the Chancery
12 Division is: Would the other party to the contract, the
13 party having the documents, be in breach of contract if he
14 refused to allow inspection or to deliver up the documents
15 for a purpose extraneous to the performance of the
16 contract? The Chancery Division has twice answered that
17 question in the negative.
18
19 MR. JUSTICE BELL: It did occur to me too late actually to ask
20 when Mr. Walker was giving answers as to whether he would
21 expect documents to be handed up if he asked, whether the
22 answer would be the same if it was for the purposes of this
23 litigation rather than McDonald's business with them.
24
25 MR. RAMPTON: I will show your Lordship -----
26
27 MR. JUSTICE BELL: That is the same sort of point, is it?
28
29 MR. RAMPTON: The evidence so far about what the precise terms
30 of the contract are between McDonald's and its suppliers
31 for perfectly good reason is not perhaps as complete as it
32 might be that your Lordship has heard. What your Lordship
33 does know is that the contracts themselves appear to be in
34 large part oral but that there are detailed written
35 specifications.
36
37 I will show your Lordship in a moment some of those written
38 specifications in which this question of inspection of
39 documents by McDonald's is stated. Whether your Lordship
40 concludes that those are post contractual or extra
41 contractual terms or not does not, in my submission,
42 probably matter very much for this purpose. I am willing
43 to accept that those written specifications are either
44 records of what has been agreed orally or else are
45 additional written contractual terms, though it may not
46 matter very much for this purpose.
47
48 My Lord, I am getting ahead of myself, perhaps no harm,
49 because it does help, in our respectful submission, to
50 think about these judicial dicta in the context of the
51 facts in this case, as one notices Lord Denning has urged
52 one to do. One can ask the retrospect question: If
53 McDonald's go to Mr. Walker at McKey or their suppliers in
54 America or whatever, and say to Mr. Walker: "We want these
55 documents because we are trying to help somebody make a
56 television programme about the meat industry", or if they
57 said: "We demand these documents that you have got that
58 you have kept for your purposes under the contract, we
59 demand these documents because we want to show them to
60 somebody we are thinking of replacing you with as a
