Day 024 - 15 Sep 94 - Page 60


     
     1
     2   MR. MORRIS:  Fair enough.
     3
     4   MR. JUSTICE BELL:  Mr. Gardner cannot say whether it
     5        strengthens his position or not.  He might infer (as
     6        I might) that Harvey Anderson had a view which was not so
     7        very different from his but that the author of the letter
     8        disagreed.
     9
    10   MR. MORRIS:  What I am saying is not whether Harvey Anderson's
    11        view was correct, but that this strengthens his view that
    12        McDonald's were knowing in that they had been advised.
    13
    14   MR. JUSTICE BELL:  Quite frankly, Mr. Gardner's view on that
    15        does not help me.  It is my view.
    16
    17   MS. STEEL:  I would think that because Mr. Gardner has studied
    18        consumer protection and that was his area of expertise
    19        that he does have a valid view of it.
    20
    21   MR. JUSTICE BELL:  He does but he has given it.  That is the
    22        point, do you see?  He has given evidence in relation to
    23        the cholesterol ad which I will consider.  What I cannot
    24        see at the moment is how he can add to that evidence by
    25        commenting on this letter or memo.
    26
    27   MR. MORRIS:  Can we have a couple of minutes to see if we have
    28        any further questions?
    29
    30   MR. JUSTICE BELL:  Yes.  (Pause).  You cross-examined
    31        Mr. Horwitz on it, which is fair enough, and that is all
    32        in the transcript.  You have Mr. Gardner's view of the
    33        cholesterol ad.  He has told me about his expertise in
    34        these matters.
    35
    36   THE WITNESS:  Your Lordship, would the court entertain a
    37        request from the witness for a brief recess?
    38
    39   MR. JUSTICE BELL:  Yes.  How long do you want?  A couple of
    40        minutes?
    41
    42   THE WITNESS:  Yes.
    43
    44   MR. JUSTICE BELL:  Yes.  (Pause).
    45
    46   MR. JUSTICE BELL:  I understand what Mr. Gardner is saying,
    47        that McDonald's must have known that the ads including the
    48        cholesterol one were deceptive.  I have heard his evidence
    49        in relation to that.  I understand your point that
    50        McDonald's went into it with their eyes open, you would 
    51        say, because someone whose view is to be respected had 
    52        raised the possibility of the cholesterol ad being 
    53        misleading.  I will give consideration to those points.
    54        What I do not see at the moment is how Mr. Gardner's
    55        comment on that can advance the matter beyond what I have
    56        just said upon which I may have to make up my mind.
    57
    58   MS. STEEL:   OK.  I think really all that is left is just to go
    59        through things that Mr. Horwitz said in his testimony to
    60        give Mr. Gardner a chance to rebut them or whatever.

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