Day 083 - 06 Feb 95 - Page 29
1 does not blur really the reality that the McDonald's system
2 is a very unified, controlled system with full access for
3 the Corporation, not only in terms of documents, of course,
4 but other things.
5
6 I do not know how you feel about the authorities, whether
7 because of the contractual clarity whether, in fact, they
8 would apply in this case in any event, and whether we need
9 to go into what the authorities say.
10
11 MR. JUSTICE BELL: I would like to think about it but at the
12 moment, unless you have an argument to the contrary, it
13 seems to me that the test is that which was set out in Lord
14 Justice Shaw's judgment and Lord Diplock's speech. I will
15 think further as to whether there is the gloss which
16 Mr. Rampton contends for as set out in the Chancery cases
17 where, in effect, a right to production may be for the
18 purposes of the contract between the parties only. The
19 best illustration I can try to give you to help you in
20 relation to those specification documents would be any
21 right to obtain production, not just inspection but
22 production, of the documents would be for the purposes of
23 quality assurance checks, as opposed to for the purposes of
24 this litigation, for instance.
25
26 MR. MORRIS: Yes, but I do not think that is -- I think the
27 contracts to me seem absolutely clear. They do not
28 distinguish, they do not -- to me, the contracts specify
29 that McDonald's has the right of access, inspection, which
30 would include copies on any relevant documents. Obviously,
31 if a company has some documents that are not relevant to
32 McDonald's, that is another thing, but it does not say,
33 I think it would be absurd to say, that the clear tenor of
34 all the contract is that McDonald's has the right of access
35 to documents it thinks are necessary for itself, which is
36 the important thing. In reality, that is what happens,
37 whatever -----
38
39 MR. JUSTICE BELL: That is the one thing the authorities tell me
40 I have to ignore, is it not, whatever the reality of the
41 situation may be? I mean, that was part of Lord Denning's
42 judgment related to that.
43
44 MR. MORRIS: I think the contracts are pretty clear in this case
45 and backed up with the oral contracts and evidence that we
46 have heard.
47
48 MR. JUSTICE BELL: You can come back during the course of your
49 submissions on the other matters on your list to say
50 anything further you want to say about that. But when you
51 are going through documents in relation to which you say
52 you should have further discovery, it seems to me you have
53 to apply your mind to -- let us suppose I said that the
54 legal position was as set out by Lord Justice Shaw and Lord
55 Diplock, i.e. only those documents which either of the two
56 Plaintiffs have an immediate and enforceable right to get
57 hold of, not just a reasonable expectation that if they ask
58 for them they will actually be provided. Then, if you are,
59 for instance, going through documents in relation to --
60 just as an example -- Brazilian, Costa Rican or Guatemalan
