Day 083 - 06 Feb 95 - Page 21
1 in the first paragraph, so far as this question of
2 discovery is concerned, and what is said in the second
3 paragraph. Taking the two paragraphs together as a whole,
4 it would be difficult to find a more characteristic
5 description of confidential contractual information than is
6 represented by those two paragraphs.
7
8 The difference for the purpose of this application for
9 discovery is perhaps this, that so far as the first
10 paragraph is concerned, if we are right in our
11 interpretation of the authorities, McDonald's have no power
12 under Order 24 in relation to the Black Book and its
13 information. But, if and in so far as information had been
14 provided to them and was in their possession under the
15 second paragraph, then the fact that the information might
16 be commercially confidential or contractually confidential
17 would be no bar to the obligation in discovery because the
18 information would be in McDonald's possession.
19
20 My Lord, what I am submitting applies to documents held by
21 suppliers who are in a contractual relationship with
22 McDonald's, that is to say, in this country, as far as
23 I know, Sun Valley and McKey, the only relevant ones any
24 way for this case. My Lord, so far as America is
25 concerned, I am not able to say from my recollection who
26 are what one might call the immediate contractual
27 suppliers. Certainly, it may be that Tysons are and it may
28 be that -- this is only a failure of memory on my part --
29 Keystone Foods or whatever are.
30
31 If McDonald's have no power in this sense over the
32 documents of those immediate contractual suppliers because
33 the immediate contractual suppliers have no contractual
34 obligation to disclose, McDonald's, therefore, having no
35 enforceable legal right over those documents, a fortiori,
36 my Lord, it must follow, if we are right about that, that
37 McDonald's have absolutely no say in whether documents
38 should be disgorged by, for example, slaughterhouses or
39 whatever that supply the immediate suppliers.
40
41 My Lord, I distinguish the legal position and the stance
42 which, if this submission is correct, McDonald's may or may
43 not decide to take, (but if they do are entitled to take in
44 relation to any order for discovery the Defendants may ask
45 for) I distinguish that from the position where, as your
46 Lordship once said recently, de benesse Mr. Walker or
47 anybody else out of the kindness of their heart may decide
48 that he will help your Lordship to a decision in this case
49 by disclosing relevant documents. My Lord, that happened
50 quite recently in relation to the 83.57, or whatever it
51 was, tonnes of Brazilian beef. Mr. Walker produced a sheaf
52 of contemporaneous documents which he had in his file. My
53 Lord, that, in our submission, is the position in law.
54
55 MR. JUSTICE BELL: What is my position at this stage?
56 Obviously, I can give, as it were, "a declaratory judgment"
57 of what I understand the legal test to be applied is if any
58 issue arises either now or in the future and I can,
59 applying that test, make a specific ruling on any
60 particular class or description of document or individual
