Day 164 - 26 Sep 95 - Page 37
1 subsidiary. It is an independent and separately run
2 company; whereas, as I have all along accepted in this
3 case, that does not mean that McDonald's, the Plaintiffs in
4 this case, whether the English company or, more
5 particularly in this case in this instance, the American
6 Corporation will wash their hands of what a franchisee does
7 or does not do. What it does do is raise grave
8 difficulties in the face of an application for discovery of
9 documents, which at the very best by the use of the most
10 optimistic creative imagination one could say might at some
11 stage have fallen into the hands of the French franchisee.
12
13 If it came to it, and I do not believe it does, I would be
14 inclined to argue what so far we all in this court have
15 fought shy of, what does it mean when the rule says that
16 the document has to be in the power of a party. Given that
17 corporate structure, it would, in my submission, be odd, if
18 it could be said that even if those temoignage were in
19 written form and were in the possession of the French
20 franchisee, they were, therefore, in the power of either of
21 the Plaintiffs in this case. As I say, I remind your
22 Lordship that the even the French subsidiary had nothing
23 whatever to do with this dispute.
24
25 That is the first point I make. The second point is this:
26 Looking at Mr. Lamti's statement in French and, at any
27 rate, one of the translations, there is certainly no basis
28 on which Mr. Morris can confidently assert that those
29 temoignage are in written form or, at any rate, any written
30 form which is likely to have been handed to the Respondent
31 to the complaint, the franchisee.
32
33 If French proceedings (and I do not know whether they are
34 or not) are anything like English proceedings, then these
35 are in the nature of statements taken by the police or some
36 other investigating authority, and all that the responding
37 gets party gets in due course are the statements upon which
38 the investigating or prosecuting authority intends to rely.
39
40 MR. JUSTICE BELL: I wondered whether it was even as close as
41 that because if I actually find it again, so far as I am
42 aware, the French have this system whereby the examining
43 magistrate can actually summon people to come and give
44 evidence to him and, indeed, have them arrested. One
45 occasionally reads a bit of a fuss in the newspapers
46 because some prominent person has been arrested and taken
47 to the examining magistrate in order to be examined by the
48 magistrate about some criminal matter, not necessarily
49 directly involving the person who has been arrested.
50
51 MR. RAMPTON: Yes. I take it what has happened in this case
52 (and I do not know), judging by the French paragraph, the
53 penultimate paragraph on page 3, what has happened is that
54 the Police and the Work Inspectorate went round and took
55 some statements, whether in writing, I do not know, passed
56 them on to the examining magistrate who instituted some
57 kind of proceeding, or it might be under the French system
58 simply an investigation, which I think is what is meant by
59 the words "L'Interpellation a la mise examen" of the 12
60 directors of the restaurant of groups in the Lyonnaise
