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

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