Day 083 - 06 Feb 95 - Page 15


     
     1        supplier" and Mr. Walker said:  "Go and jump in the lake",
     2        would he be in breach of his contract with McDonald's?  To
     3        which, in our respectful submission, the answer is plainly
     4        "no, he would not"; that would be an absurd conclusion for
     5        any court to arrive at.  I have borrowed the word "absurd",
     6        my Lord, from Mr. Justice Whitford, as your Lordship will
     7        see in a moment.
     8
     9        Can I just go quickly to the House of Lords which is
    10        reported 1980 1 WLR 627.  It is the appeal in the Lonrho v.
    11        Shell case.  My Lord, I need not bother with the headnote.
    12
    13   MR. MORRIS:  Which one is this?
    14
    15   MR. RAMPTON:  This is tab 3 now.
    16
    17   MR. JUSTICE BELL:  It is the appeal from the last decision, is
    18        it?
    19
    20   MR. RAMPTON:  The Plaintiffs appealed against the decision in
    21        the Court of Appeal and failed, but I refer to this only
    22        for the dictum of Lord Diplock to see how he puts it at
    23        page 635, starting just below the letter F.  I will start
    24        at E, if I may:
    25
    26        "Your Lordships are not concerned with any other
    27        consequences of the relationship between parent and
    28        subsidiary companies than those which affect the duty of a
    29        parent company of a multinational group" -----
    30
    31   MR. JUSTICE BELL:  I have not found the place.
    32
    33   MR. RAMPTON:  Letter E he starts:  "This argument only requires
    34        to stated to be rejected."  That was about whether they
    35        should change their corporate structure so as to give
    36        themselves power, I think.  It goes on:  "Your Lordship are
    37        not concerned with any other consequences of the
    38        relationship between parent and subsidiary companies than
    39        those which affect the duty of a parent company of a
    40        multinational group, whose company structure is that of the
    41        Shell or BP groups, to give discovery of documents under
    42        RSC Order 24; and this, as I have pointed out, depends upon
    43        the true construction of the word 'power' in the phrase
    44         'the documents which are or have been in his possession,
    45        custody or power'.
    46
    47        The phrase, as the Court of Appeal pointed out, looks to
    48        the present and the past, not to the future.  As a first
    49        stage in discovery, which is the stage with which the
    50        subsidiaries appeal is concerned, it requires a party to 
    51        provide a list, identifying documents relating to any 
    52        matter in question in the cause of matter in which 
    53        discovery is ordered.  Identification of documents requires
    54        that they must be or have at one time been available to be
    55        looked at by the person upon whom the duty lies to provide
    56        the list.  Such is the case when they are or have been in
    57        the possession or custody of that person; and in context of
    58        the phrase 'possession, custody or power' the expression
    59         'power' must, in my view, mean a presently enforceable
    60        legal right to obtain from whoever actually holds the

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