Day 121 - 04 May 95 - Page 48


     
     1
     2   MR. JUSTICE BELL:  I just cannot say.  I would have to look
     3        through it.
     4
     5   MR. MORRIS:  You see, we cannot trace Helen Caulderwood.  She
     6        has made statements during that investigation taken by
     7        McDonald's themselves.
     8
     9   MR. JUSTICE BELL:  It is so long since I have looked at them,
    10        I cannot recall, but if there is a statement from Helen
    11        Caulderwood there and/or one from the Manager, you can
    12        certainly put Civil Evidence Act Notices on those.  But, I
    13        mean, we are dealing with balance of probabilities only.
    14        There is a conviction ---
    15
    16   MR. MORRIS:  Yes.
    17
    18   MR. JUSTICE BELL:  -- there are convictions against the people
    19        concerned.
    20
    21   MR. RAMPTON:  My Lord, yes.  What is more, the convictions are
    22        in a defamation action, incontrovertible evidence, the
    23        event occurred.  The sentence on the Manager was very grave
    24         -- it was six months imprisonment -- and on the
    25        subordinates 120 hours Community Service and the other one
    26        acquitted, so one can draw one's own conclusions from
    27        that.
    28
    29   MR. JUSTICE BELL:  That is why I said it is on balance of
    30        probabilities.  Mr. Rampton has said it for me and said it
    31        for you; it is not going to be very difficult for me to
    32        infer on balance of probabilities that it was initiated by
    33        the Manager who used a more junior member of the staff to
    34        implement the plan.
    35
    36        What we will have to see is where in the case we go from
    37        there, but I do not think you need anticipate difficulty
    38        about that.  I would not bother with Civil Evidence Act
    39        Notices there because if we just take the very bare bones
    40        of it, you have  -----
    41
    42   MR. MORRIS:  Helen Caulderwood certainly gives the context in
    43        why she felt she was being pressurised to do that, which
    44        was to boost profits and takings in competition with Burger
    45        King.  Therefore, on that reason alone, I would want to
    46        have a Civil Evidence Act Notice -----
    47
    48   MR. JUSTICE BELL:  I probably will not have much difficulty with
    49        that because if you put one of your obvious competitors out
    50        of action for the day, the chances are you are going to 
    51        sell more burgers yourself. 
    52 
    53   MR. MORRIS:  Maybe it will save time if I just ask the witness.
    54        (To the witness):  Would you accept -----
    55
    56   MR. JUSTICE BELL:  No, do not ask him to do that because it
    57        would not matter whether he accepts it or not; I have to
    58        make judgment on it.  You can remind me in due course that
    59        I expressed the view that, on balance of probabilities, it
    60        was done at the instigation of the Manager using a more

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