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
