Day 186 - 10 Nov 95 - Page 34


     
     1        surveys, in any event, where I think they said something
     2        about "they did not come to McDonald's to get healthy
     3        food".  I think that was one of the Fairgrieve surveys.  Of
     4        course, it was referred to in the nutrition memo in 1986,
     5        where they said that people do not come to McDonald's for
     6        nutritious food.
     7
     8        The only other large section of notes related to the baker
     9        case and striking out -- although I do not particularly --
    10        I am not 100 percent clear about the situation with this.
    11        If I can just say briefly, the argument I wanted to put on
    12        the last occasion was not the same as the argument that
    13        Mr. Morris was trying to put a couple of months ago, or
    14        when we first came back to court.  It related to the
    15        Plaintiffs' own meaning.  I think it is an accepted legal
    16        principle that you cannot find a meaning higher than that
    17        pleaded by the Plaintiffs; therefore, if the Plaintiffs'
    18        meaning is not defamatory because of the interpretation of
    19        the Scottish baker case, there would be no case for us to
    20        answer; and, therefore, that was why I was arguing that
    21        their case should be struck out, and that would leave us
    22        not having to argue about what the meaning was of this
    23        section of the leaflet.  I do not know whether you want me
    24        to make the point on that?
    25
    26   MR. JUSTICE BELL:  I do not think so, because the preliminary
    27        issue, as I have defined it, which I am now trying, and
    28        stealing, as it were, from the first page of the Master of
    29        the Rolls' judgment in Skuse, because I have not brought
    30        with me my note where I actually wrote it down -- whether
    31        the words complained of are defamatory to the Plaintiffs
    32        and, if so, whether they bear the defamatory meaning
    33        complained of by the Plaintiffs or some lesser defamatory
    34        meaning and, if so, what -- includes the question of
    35        whether the meaning, whatever I decide it to be, is
    36        defamatory; and the pleadings are just a route to the
    37        conclusion, whatever it is; and as soon as I have, for
    38        instance, decided the meaning and whether it is defamatory
    39        on this preliminary issue, then you can forget any pleading
    40        about meaning.  That has served its purpose.  So there is
    41        no need to strike out.  I just hear this preliminary issue,
    42        make my ruling on it, and then you can forget any pleadings
    43        about meaning.
    44
    45   MS. STEEL:   I am getting a little bit confused now.  Are you
    46        saying, supposing you found that there was not a defamatory
    47        meaning -----
    48
    49   MR. JUSTICE BELL:  If I find that the meaning is X, but X is not
    50        defamatory, then that is the end of the Plaintiffs' case in 
    51        so far as nutrition is concerned. 
    52 
    53   MS. STEEL:   Yes.
    54
    55   MR. JUSTICE BELL:  If X is the meaning pleaded by the
    56        Plaintiffs, but I find it is not defamatory and that is
    57        still the case, if I find it is something different to that
    58        pleaded by the Plaintiffs but some lesser meaning --
    59        because it cannot be a higher one, a stronger one -- and
    60        that is not defamatory, that is the end of it.  If I find

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