Day 164 - 26 Sep 95 - Page 37


     
     1        subsidiary.  It is an independent and separately run
     2        company; whereas, as I have all along accepted in this
     3        case, that does not mean that McDonald's, the Plaintiffs in
     4        this case, whether the English company or, more
     5        particularly in this case in this instance, the American
     6        Corporation will wash their hands of what a franchisee does
     7        or does not do.  What it does do is raise grave
     8        difficulties in the face of an application for discovery of
     9        documents, which at the very best by the use of the most
    10        optimistic creative imagination one could say might at some
    11        stage have fallen into the hands of the French franchisee.
    12
    13        If it came to it, and I do not believe it does, I would be
    14        inclined to argue what so far we all in this court have
    15        fought shy of, what does it mean when the rule says that
    16        the document has to be in the power of a party.  Given that
    17        corporate structure, it would, in my submission, be odd, if
    18        it could be said that even if those temoignage were in
    19        written form and were in the possession of the French
    20        franchisee, they were, therefore, in the power of either of
    21        the Plaintiffs in this case.  As I say, I remind your
    22        Lordship that the even the French subsidiary had nothing
    23        whatever to do with this dispute.
    24
    25        That is the first point I make.  The second point is this:
    26        Looking at Mr. Lamti's statement in French and, at any
    27        rate, one of the translations, there is certainly no basis
    28        on which Mr. Morris can confidently assert that those
    29        temoignage are in written form or, at any rate, any written
    30        form which is likely to have been handed to the Respondent
    31        to the complaint, the franchisee.
    32
    33        If French proceedings (and I do not know whether they are
    34        or not) are anything like English proceedings, then these
    35        are in the nature of statements taken by the police or some
    36        other investigating authority, and all that the responding
    37        gets party gets in due course are the statements upon which
    38        the investigating or prosecuting authority intends to rely.
    39
    40   MR. JUSTICE BELL:  I wondered whether it was even as close as
    41        that because if I actually find it again, so far as I am
    42        aware, the French have this system whereby the examining
    43        magistrate can actually summon people to come and give
    44        evidence to him and, indeed, have them arrested.  One
    45        occasionally reads a bit of a fuss in the newspapers
    46        because some prominent person has been arrested and taken
    47        to the examining magistrate in order to be examined by the
    48        magistrate about some criminal matter, not necessarily
    49        directly involving the person who has been arrested.
    50 
    51   MR. RAMPTON:  Yes.  I take it what has happened in this case 
    52        (and I do not know), judging by the French paragraph, the 
    53        penultimate paragraph on page 3, what has happened is that
    54        the Police and the Work Inspectorate went round and took
    55        some statements, whether in writing, I do not know, passed
    56        them on to the examining magistrate who instituted some
    57        kind of proceeding, or it might be under the French system
    58        simply an investigation, which I think is what is meant by
    59        the words "L'Interpellation a la mise examen" of the 12
    60        directors of the restaurant of groups in the Lyonnaise

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