Day 207 - 23 Jan 96 - Page 44


     
     1        session.  The proper question for the witness who was not
     2        at the rap session is:  Do you agree whether that is
     3        representative of McDonald's or not?  What the trap is that
     4        the Defendants are going to fall into, I fear, is to think
     5        that this is representative; it may be that it is, but
     6        until they have some evidence of it, it does not do them
     7        any good.
     8
     9   MR. JUSTICE BELL:  At some stage -----
    10
    11   MS. STEEL:   We have had some evidence about the function of the
    12        rap sessions, the purpose of the rap sessions, according to
    13        the Plaintiffs.  It is their choice to use this system and,
    14        according to them, it is how they find out what the
    15        problems are in the store.
    16
    17   MR. JUSTICE BELL:  I appreciate that, but at some stage I am
    18        going to need some help on the extent to which at all I can
    19        take the answers as being evidence of the truth of what is
    20        said.  I appreciate that you are certainly entitled to ask
    21        if it accords with the witness's view of matters.  It is
    22        rather difficult because the natural tendency is to say,
    23        quite regardless of whether it is just one crew member or
    24        the whole of the rap session who is making the comment --
    25        that may be another point altogether  -- if people were
    26        complaining that such and such be so, then that is evidence
    27        that it was so.
    28
    29        There is a legal evidential difficulty there, but let us
    30        see where we get to, because what is going to be suggested
    31        on behalf of the Plaintiffs is that an answer written down
    32        on the rap session report form is no evidence of the truth
    33        of what was actually written down, but let us not get tied
    34        down on it for the moment.
    35
    36   MR. RAMPTON:  No, my Lord, but if the witness is to be useful to
    37        your Lordship and the Defendants to be fair to the witness,
    38        surely, the right question must be -- with respect, I adopt
    39        your Lordship's analysis of the legal position, it is a
    40        point I have made once if not a dozen times before;
    41        complaints do not prove anything, except the fact they were
    42        made -- if the witness is asked:  "Do you agree that is
    43        representative of conditions in McDonald's?" and he says:
    44        "Yes, I do", why, then the Defendants have admissible
    45        evidence which they can allow, otherwise these rap session
    46        notes do not help them one bit.
    47
    48   MR. JUSTICE BELL:  Yes, I think it would be helpful to ask
    49        always the witness whether he or she agrees with the
    50        comment which is written there, because you are going to be 
    51        faced with this problem, neither the fact that it is 
    52        written down on the form, nor if the witness accepts that 
    53        there were a number of complaints about such and such a
    54        statement of affair, neither of those matters are actually
    55        evidence of the state of affair.  If you can get him to
    56        take one step further and say:  "Yes, there were complaints
    57        and it did happen", then it is the last answer which is the
    58        one which is evidence.
    59
    60   MS. STEEL:   Yes, but ------

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