Day 083 - 06 Feb 95 - Page 20


     
     1        and I could tell, this is the first time this happens.  In
     2        the second paragraph it makes the provision for inspection
     3        and then it says in the last sentence -- it does appear to
     4        be a new sentence, so far as we can tell --  "All records
     5        will be found in a confidential file and are to be retained
     6        for a minimum of three years".
     7
     8   MS. STEEL:  You also find that on page 11 under "L1".
     9
    10   MR. RAMPTON:  No, my Lord, it is not quite the same; the word
    11        "confidential" is not inserted in that second sentence
    12        under "1".  One does find it in February 1990.  What I was
    13        going to say about that was this, or two things actually,
    14        whatever the specific terminology of these specifications,
    15        it is, we would submit, as a matter of law, or as a matter
    16        of construction, clear that any court would say that the
    17        suppliers' records of what they are doing in performance of
    18        their contractual obligations to McDonald's would always be
    19        confidential.  That, of course, in itself is not a bar to
    20        discovery if the power exists in McDonald's to compel
    21        disclosure of these documents for the purposes of this
    22        litigation or indeed, for any other purpose.  But once it
    23        is apparent that the information is confidential, then it
    24        lends support to the argument that this is not a contract
    25        which permits disclosure of the information for purposes
    26        extraneous to the contract.
    27
    28        In other words, it would be part of the suppliers' defence
    29        to an action by McDonald's for specific performance if
    30        McDonald's sought to assert that they had a right under the
    31        contract to call these documents for the purposes of this
    32        litigation.
    33
    34        Against that background -- there is a good deal more but
    35        perhaps your Lordship does not need to see any of that --
    36        there is perhaps one other reference which I ought to give
    37        your Lordship:  Page 33 is an example from 1991.  I dare
    38        say there may be earlier ones which I have missed.  There
    39        is a reference to something called a Black Book:  "Supplier
    40        shall maintain an up-to-date Black Book of production
    41        processes for each plant and have it available for
    42        inspection at each production location."  Then it sets out
    43        what the topics that are to be described in detail in the
    44        Black Book are:  "Raw material specifications and required
    45        incoming tests, add-back/rework policy, manufacturing
    46        equipment, process procedures, formula, in-process testing
    47        and critical control points (HACCP), quality control
    48        testing, equipment maintenance ... and plant sanitation
    49        procedures.
    50 
    51        Supplier shall provide McDonald's Quality Assurance 
    52        Department a complete evaluation and explanation of 
    53        production formula, labelling declaration, nutritional
    54        information, shelf life and microbiological stability
    55        whenever a production process or packaging change is
    56        effected.  This information must be provided in writing and
    57        in advance of any change being made."
    58
    59        My Lord, so as far as that first paragraph is concerned,
    60        I make a distinction, if I may, between what is said there

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