Day 312 - 11 Dec 96 - Page 24


     
     1        there is no credible evidence before the court that the
     2        Defendants wrote the fact sheet in question.  The
     3        Plaintiffs' evidence at its highest is that the Defendants
     4        may have been involved in its dissemination.  This puts us
     5        in an entirely different position to the authors of the
     6        fact sheet in question.  2, in many places the fact sheet
     7        is essentially reports what others say about McDonald's and
     8        other similar multi-nationals, and, 3, as unrepresented and
     9        impecunious parties, the Defendants are simply not equipped
    10        to prove the substantial truth of every material fact
    11        contained in the fact sheet.
    12
    13        That, however, is not the same as an admission that those
    14        facts are not true, or substantially true.
    15
    16        In other words, in so far as the Defendants are required to
    17        prove the substantial truth of all material facts in order
    18        to succeed in a defence of justification they are faced
    19        with an unreasonable if not impossible task.
    20
    21        No 9.  Moreover, this court has been deprived of the
    22        opportunity of hearing all the evidence that the Defendants
    23        would ideally like to put before it.  For example, it is a
    24        plain and obvious fact that the Defendants have not had
    25        resources to find and prove all the witnesses that they
    26        would like the court to hear, in particular witnesses from
    27        other countries.  I did make this point previously, that
    28        obviously we did not have the resources to fly to Costa
    29        Rica and Brazil to track down witnesses or to pay for
    30        interpreters to enable us to be able to find out what
    31        evidence they would be able to give.
    32
    33        Still less, the Defendants have had the resources to ensure
    34        that such witnesses attend court and give evidence.
    35
    36        No 10.  In preparing witness statements (to which they were
    37        then held by a ruling after the case had started),
    38        examination-in-chief, cross-examination, and final
    39        submissions the Defendants have been very considerably
    40        hampered by two facts: (a), lack of legal expertise, and
    41        (b) lack of time.
    42
    43        Whilst it is no fault of this court that we have been
    44        hampered through those things it is obvious that our case
    45        could, and would, have been better presented if we had had
    46        the intense legal advice and assistance over the past six
    47        years that this case warrants.
    48
    49        Number 11, article 10 of the European Convention on Human
    50        Rights establishes the principle that free speech must be
    51        guaranteed.  It is considered a fundamental right in any
    52        democracy.  Whilst restrictions upon an individual's free
    53        speech are permitted the court is not expected simply to
    54        engage in a "balancing" exercise, that is balancing freedom
    55        of speech against restrictions.  The rights and
    56        restrictions are not competing values of equal weight.  The
    57        restrictions are a number of exceptions to be strictly
    58        applied.  The right of free speech must prevail unless any
    59        restrictions on it are shown to come within the strict
    60        terms of article 10 (2) of the Convention.  That is the

Prev Next Index