Day 127 - 23 May 95 - Page 10


     
     1        Before Mrs. Barnes gives evidence, I owe your Lordship an
     2        explanation why the internal report was not disclosed
     3        beforehand.  I will do that in a moment, if I may.
     4
     5        Your Lordship has seen them.  Your Lordship may feel, as
     6        I do, that the idea that witnesses need to comment on those
     7        documents is simply preposterous.  They are internal
     8        McDonald's documents.  The only witness which the
     9        Defendants have on the Mark Hopkins' affair is Mr. Robert
    10        Chapman.  So far as we are aware, he has not even indicated
    11        that he is coming to court to give evidence.
    12
    13        They are very simple documents.  The whole lot can be read
    14        in the course of a couple of hours.  The ones that matter
    15        were delivered on Friday.  There were yesterday, I think,
    16        two letters from the Health & Safety Executive to
    17        McDonald's which speak for themselves really.
    18
    19        My Lord, can I say a word about that document, because I do
    20        feel embarrassment about it on behalf of my clients.  When
    21        it was originally looked at at Barlows, it was perfectly
    22        obvious it was a relevant document and, in the ordinary
    23        way, disclosable, but plainly it had been prepared at a
    24        time when there was a possibility both of criminal
    25        proceedings and of civil proceedings arising out of the
    26        Mark Hopkin's incident.
    27
    28        So, they got in touch with McDonald's and asked (which is
    29        the right question to ask) what was the reason why this
    30        document was created.  The answer came back that the
    31        principal reason for its creation was a possible prospect
    32        of litigation, both criminal and civil.  They, therefore,
    33        made the very proper decision that it is was privileged and
    34        did not disclose it.
    35
    36        I saw the document for the first time last week, and it
    37        occurred to me that I ought to ask Mrs. Barnes about it
    38        when I saw her last week because she was the person who
    39        wrote it.  It then emerged that although the prospect of
    40        litigation was one reason why the document was written, in
    41        fact, a reason of equal force was to advise the Company
    42        what it ought to do, what lessons it ought to learn arising
    43        out of that incident.
    44
    45        My Lord, I then had another look at Warn(?) v. The British
    46        Railways Board which makes it perfectly clear that
    47        privilege does not work, is not effective, unless the legal
    48        advice purpose is the dominant one, and I was not able to
    49        say that it was.
    50 
    51   MR. JUSTICE BELL:  That is the case of Mose against a health 
    52        authority, whose name I cannot remember. 
    53
    54   MR. RAMPTON:  Yes.  I cannot either, but plainly, in those
    55        circumstances, with two purposes having equal weight, the
    56        document had to be disclosed.  I, therefore, advised last
    57        week that it should be disclosed and it was.
    58
    59        My Lord, it is, as your Lordship can see, not a difficult
    60        or complex document.  It is not particularly long and it

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