Day 083 - 06 Feb 95 - Page 23


     
     1        not matter -- there would have been a nice argument back in
     2        1983, or until the shareholding changed, whether the
     3        Plaintiffs, or either of them, in this case had the power
     4        to produce those documents which Mr. Walker produced
     5        himself voluntarily the other day.  That would have
     6        depended, perhaps, less on the contractual position between
     7        McDonald's and McKey which, presumably, was the same as it
     8        is today -- McKey's being a separate legal entity -- less
     9        on that argument, in other words, what I am saying is this:
    10          Using the contractual position only, if we are right
    11        about our submission, McDonald's would have had no better a
    12        right or power in those days than they do now.  However,
    13        there might have been a nice argument whether or not their
    14        shareholding in McKey's gave them some further or different
    15        enforceable legal right to disclose the documents or to
    16        call for the documents to be disclosed.  But, my Lord, that
    17        is not the position now.
    18
    19        If your Lordship decided to widen the ambit of Brazilian
    20        discovery, then a question arises:  Are there any
    21        documents, relevant documents, in the possession of
    22        McDonald's Brazil?  If there are, does either of the
    23        Plaintiffs -----
    24
    25   MR. JUSTICE BELL:  Can I put a stage in before that?  The first
    26        question would arise whether there are any documents within
    27        the class I have described which are in the possession of
    28        the First or Second Plaintiffs.  They would then be
    29        listed.  There might be an argument about whether I should
    30        order their disclosure for inspection.  But if there were
    31        documents which might be relevant but which by the test set
    32        out your clients, i.e. the First and Second Plaintiffs,
    33        would say were not and are not within the First and Second
    34        Plaintiffs' power, they just would not appear on the list
    35        so that no-one else would know anything about them at all.
    36
    37   MR. RAMPTON:  That is one way of looking at it.  There are many
    38        ways of dealing with it.  If one stood on one's strict
    39        rights -----
    40
    41   MR. JUSTICE BELL:  That would be the position, would it not?
    42
    43   MR. RAMPTON:  If we took the view (and it might be your Lordship
    44        would have to rule about this in the light of evidence
    45        which your Lordship does not presently have) for example,
    46        that the McDonald's Corporation, the First Plaintiff in
    47        this action, was in the same relation to its Brazilian
    48        subsidiary as was Shell to its subsidiaries in Rhodesia and
    49        South Africa, then we would be quite entitled to take the
    50        view that that did not give us a power for the purposes of 
    51        Order 24 to disclose any of the Brazilian subsidiaries' 
    52        documents. 
    53
    54        Further than that, it is quite certain, if our analysis of
    55        the legal position is right, that the Brazilian subsidiary,
    56        never mind the corporation or the UK company, would have no
    57        legal right to call for the documents if they existed in
    58        the hands of, for example, Braslo.
    59
    60   MR. JUSTICE BELL:  Or was it Weddon, the name of the -----

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