Day 120 - 03 May 95 - Page 44


     
     1        wade in and sort it out.
     2
     3   MR. JUSTICE BELL:  However, this may be, I am merely expressing
     4        an anxiety that I am hearing suggestions about what a
     5        McDonald's company can dictate to a franchisee, and I am
     6        hearing Mr. Nicholson's answer about that, when in fact
     7        probably all I have to do is read the franchise agreement,
     8        and I can see what the legal obligations one way or another
     9        are.  Then, if there is evidence that whatever the
    10        contractual arrangements were, McDonald's influence was
    11        such that they could call the shots as it were, I will
    12        consider that as well.  But we are in a bit of a vacuum
    13        without the franchise agreement, because if there was any
    14        issue between this Irish corporation and McDonald's, the
    15        first thing they would do is look at the franchise
    16        agreement, I would have thought.
    17
    18   MR. RAMPTON:  I do not know there is any evidence there ever was
    19        any issue between them at all.
    20
    21   MR. JUSTICE BELL:  No, but it seems to me, in the light of the
    22        issue which has arisen, it is a discoverable document, and
    23        if a copy ----
    24
    25   MR. RAMPTON:  My Lord, I say, with respect, I do not know what
    26        the issue is that is supposed to have arisen.  The
    27        Defendants are making assertions out of thin air.  They
    28        have no evidence, no basis for what they are putting to
    29        Mr. Nicholson.  All Mr. Nicholson has said is the
    30        franchisee dealt with this particular dispute himself and
    31        the Company did not have any input.  There is no issue, so
    32        far as I know; there is no evidence from the Defendants
    33        side at all.
    34
    35   MR. JUSTICE BELL:  I would have thought there might be a
    36        presumption that a company in the position of McDonald's
    37        could call the shots on a wide range of matters, save
    38        insofar as the franchise agreement makes it clear that that
    39        is entirely within the compass of the franchisee.
    40
    41   MR. RAMPTON:  That is perfectly right as a matter of theory, but
    42        that is not something that McDonald's ever have denied.
    43        What is being suggested here is these two relatively
    44        trivial incidents must have had some kind of input or
    45        influence upon the UK company.  (A) there is no reason to
    46        suppose why it should not; and, (B) the witnesses denied
    47        that it did.  For that reason I cannot see what kind of an
    48        issue there is that would give rise to discovery of the
    49        franchisee agreement.
    50 
    51   MS. STEEL:  The point is whether they were in keeping, whether 
    52        the actions taken by the Ireland company were in keeping 
    53        with the UK company's attitude to trade unions, but
    54        obviously they are.
    55
    56   MR. JUSTICE BELL:  That may be another matter, you see, because
    57        if you provide evidence that in relation to employees of
    58        the Second Plaintiff there were sackings because of
    59        interest in unions, then you can say what was happening in
    60        Ireland was just the same, and that adds to the case which

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