Day 120 - 03 May 95 - Page 46


     
     1        responsibility for very bad bits of misconduct by a
     2        franchisee, should any be proved.  That is a different
     3        question.
     4
     5   MR. JUSTICE BELL:  If Mr. Nicholson, and this is no criticism of
     6        him, asserts that no McDonald's company, be it in this
     7        instance the First Plaintiff, or the McDonald's Development
     8        Corporation, or the Second Plaintiff, can in terms of
     9        employment for a franchisee, and he is prepared to answer
    10        that question without any objection taken and say no, am I
    11        not entitled to say, in effect, that is secondary evidence,
    12        let us have a look at the primary evidence which is the
    13        franchise agreement itself.
    14
    15   MR. RAMPTON:  With respect, strictly speaking, no, because it
    16        does not actually go to any issue in the case.  The
    17        question here with these two employees, McCann and O'Brien,
    18        was whether in any sense McDonald's had a responsibility
    19        for the fact that they were ruled to have succeeded in
    20        their claim for wrongful dismissal.  Mr. Nicholson has said
    21        that he knew about it at the time, but his recollection was
    22        that Mr. Makin gave him an explanation of what happened,
    23        which had nothing to do with wanting to join a union, and
    24        that satisfied him.  My Lord, really whether that gives
    25        rise to any need of your Lordship to see the franchise
    26        agreement, I do severely doubt.  I am not being difficult,
    27        it is just there is so much paper in this case already.
    28
    29   MR. JUSTICE BELL:  I appreciate that, what it seems to me is
    30        this.  I have not read Mr. McCann again since I read
    31        through. I remember, I have a general recollection of the
    32        Irish witnesses and what they were saying.
    33
    34   MR. RAMPTON:  Your Lordship also needs to read Mr. Makin, of
    35        course, Mr. Makin, who is the franchisee.
    36
    37   MR. JUSTICE BELL:  Yes, and I am going to read those
    38        statements.  If the witnesses do not actually come to this
    39        court to give evidence, that is going to be evidence in
    40        this case, and, without ruling on the legality one way or
    41        another, all I can say is I would feel much happier if
    42        I could actually see the franchise agreement and see what
    43        the obligations are, because this is the second long
    44        discussion we have had in the last two hours about this,
    45        and at the risk of seeming too legalistic, I would just
    46        like to read the franchise agreement and see what the
    47        actual obligations are between the this Pantry company--
    48        what is it is called?
    49        A.  Pantry Franchises.
    50 
    51   MR. RAMPTON:  I will take instruction.  I do not suppose ----- 
    52 
    53   MR. JUSTICE BELL:  I do not think there is any great
    54        confidentiality about it, is there?  None at all.
    55
    56   MR. RAMPTON:  I doubt, I quite agree.  My fear is not one of
    57        confidentiality, my fear -- I will be quite open about
    58        it -- is that we get embarked on really what is very often
    59        a wild goose chase on a piece of which has nothing to do
    60        with the issues in the case.  That is really what I am

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