Day 127 - 23 May 95 - Page 10
1 Before Mrs. Barnes gives evidence, I owe your Lordship an
2 explanation why the internal report was not disclosed
3 beforehand. I will do that in a moment, if I may.
4
5 Your Lordship has seen them. Your Lordship may feel, as
6 I do, that the idea that witnesses need to comment on those
7 documents is simply preposterous. They are internal
8 McDonald's documents. The only witness which the
9 Defendants have on the Mark Hopkins' affair is Mr. Robert
10 Chapman. So far as we are aware, he has not even indicated
11 that he is coming to court to give evidence.
12
13 They are very simple documents. The whole lot can be read
14 in the course of a couple of hours. The ones that matter
15 were delivered on Friday. There were yesterday, I think,
16 two letters from the Health & Safety Executive to
17 McDonald's which speak for themselves really.
18
19 My Lord, can I say a word about that document, because I do
20 feel embarrassment about it on behalf of my clients. When
21 it was originally looked at at Barlows, it was perfectly
22 obvious it was a relevant document and, in the ordinary
23 way, disclosable, but plainly it had been prepared at a
24 time when there was a possibility both of criminal
25 proceedings and of civil proceedings arising out of the
26 Mark Hopkin's incident.
27
28 So, they got in touch with McDonald's and asked (which is
29 the right question to ask) what was the reason why this
30 document was created. The answer came back that the
31 principal reason for its creation was a possible prospect
32 of litigation, both criminal and civil. They, therefore,
33 made the very proper decision that it is was privileged and
34 did not disclose it.
35
36 I saw the document for the first time last week, and it
37 occurred to me that I ought to ask Mrs. Barnes about it
38 when I saw her last week because she was the person who
39 wrote it. It then emerged that although the prospect of
40 litigation was one reason why the document was written, in
41 fact, a reason of equal force was to advise the Company
42 what it ought to do, what lessons it ought to learn arising
43 out of that incident.
44
45 My Lord, I then had another look at Warn(?) v. The British
46 Railways Board which makes it perfectly clear that
47 privilege does not work, is not effective, unless the legal
48 advice purpose is the dominant one, and I was not able to
49 say that it was.
50
51 MR. JUSTICE BELL: That is the case of Mose against a health
52 authority, whose name I cannot remember.
53
54 MR. RAMPTON: Yes. I cannot either, but plainly, in those
55 circumstances, with two purposes having equal weight, the
56 document had to be disclosed. I, therefore, advised last
57 week that it should be disclosed and it was.
58
59 My Lord, it is, as your Lordship can see, not a difficult
60 or complex document. It is not particularly long and it
