Day 307 - 27 Nov 96 - Page 22


     
     1        something in one of the other leaflets which is not in the
     2        leaflet complained of, because if there is I don't have it
     3        in mind at the moment.
     4
     5   MS. STEEL:   I am not quite sure what you are referring to.
     6
     7   MR. JUSTICE BELL:  Well, you have referred to, you have taken
     8        exception to, the reference to other material -- and it is
     9        a perfectly valid point to make -- whether there is
    10        anything more in the other material than there is in the
    11        leaflet in question.  But I cannot think of anything which
    12        is in the other material unless it is a reference to
    13        something in, for instance, the A5 leaflet which is not
    14        covered in the leaflet complained of.  There may be.
    15
    16   MS. STEEL:   There are bits like HCFCs and methane, things like
    17        that.
    18
    19   MR. JUSTICE BELL:   At the moment, it seems to me, even though
    20        it is perfectly reasonable of you to make the point, put
    21        the argument that the statements in the press release, the
    22        background briefing and the leaflet to customers, must be
    23        taken to refer to the leaflet which is complained of in the
    24        proceedings; that is the leaflet which all the litigation
    25        is about, not other material.  In fact, it seems to me at
    26        the moment, it does not make any difference.
    27
    28   MS. STEEL:   The important point about it, it is the fact that
    29        the Plaintiffs have absolutely no evidence that the fact
    30        sheet has been distributed since the time of the writ, with
    31        the exception of the allegation of it being distributed in
    32        court.
    33
    34   MR. JUSTICE BELL:   Just pause a moment.  (Pause) Yes, I see.
    35
    36   MS. STEEL:   Yes, and the other allegation that it was
    37        distributed through McSpotlight, and that was launched in
    38        February of this year, and the point being that both of
    39        those incidents of alleged publication by us actually took
    40        place after the Plaintiffs had already issued their press
    41        releases and leaflets, and so certainly in terms of the
    42        -----
    43
    44   MR. JUSTICE BELL:  When you say 'both', what do you mean -- the
    45        McSpotlight and what?
    46
    47   MS. STEEL:   When they had the evidence of Mr. Howes, which we
    48        say comes to nothing anyway, but those are the two
    49        incidents, the only two alleged incidents of publication,
    50        since the issue of writs on us, of the fact sheet.  The 
    51        important point being that both of those two alleged 
    52        incidents took place after these press releases and 
    53        leaflets were issued by McDonald's, and therefore they
    54        could not, for example, rely on that distribution to
    55        justify their argument of privileged self-defence.  I mean,
    56        obviously, the two alleged incidents of publication were
    57        after the counterclaim was served and after the defence to
    58        counterclaim was served.  So they cannot, cannot, be
    59        referring to that in their pleadings.
    60

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