Day 120 - 03 May 95 - Page 46
1 responsibility for very bad bits of misconduct by a
2 franchisee, should any be proved. That is a different
3 question.
4
5 MR. JUSTICE BELL: If Mr. Nicholson, and this is no criticism of
6 him, asserts that no McDonald's company, be it in this
7 instance the First Plaintiff, or the McDonald's Development
8 Corporation, or the Second Plaintiff, can in terms of
9 employment for a franchisee, and he is prepared to answer
10 that question without any objection taken and say no, am I
11 not entitled to say, in effect, that is secondary evidence,
12 let us have a look at the primary evidence which is the
13 franchise agreement itself.
14
15 MR. RAMPTON: With respect, strictly speaking, no, because it
16 does not actually go to any issue in the case. The
17 question here with these two employees, McCann and O'Brien,
18 was whether in any sense McDonald's had a responsibility
19 for the fact that they were ruled to have succeeded in
20 their claim for wrongful dismissal. Mr. Nicholson has said
21 that he knew about it at the time, but his recollection was
22 that Mr. Makin gave him an explanation of what happened,
23 which had nothing to do with wanting to join a union, and
24 that satisfied him. My Lord, really whether that gives
25 rise to any need of your Lordship to see the franchise
26 agreement, I do severely doubt. I am not being difficult,
27 it is just there is so much paper in this case already.
28
29 MR. JUSTICE BELL: I appreciate that, what it seems to me is
30 this. I have not read Mr. McCann again since I read
31 through. I remember, I have a general recollection of the
32 Irish witnesses and what they were saying.
33
34 MR. RAMPTON: Your Lordship also needs to read Mr. Makin, of
35 course, Mr. Makin, who is the franchisee.
36
37 MR. JUSTICE BELL: Yes, and I am going to read those
38 statements. If the witnesses do not actually come to this
39 court to give evidence, that is going to be evidence in
40 this case, and, without ruling on the legality one way or
41 another, all I can say is I would feel much happier if
42 I could actually see the franchise agreement and see what
43 the obligations are, because this is the second long
44 discussion we have had in the last two hours about this,
45 and at the risk of seeming too legalistic, I would just
46 like to read the franchise agreement and see what the
47 actual obligations are between the this Pantry company--
48 what is it is called?
49 A. Pantry Franchises.
50
51 MR. RAMPTON: I will take instruction. I do not suppose -----
52
53 MR. JUSTICE BELL: I do not think there is any great
54 confidentiality about it, is there? None at all.
55
56 MR. RAMPTON: I doubt, I quite agree. My fear is not one of
57 confidentiality, my fear -- I will be quite open about
58 it -- is that we get embarked on really what is very often
59 a wild goose chase on a piece of which has nothing to do
60 with the issues in the case. That is really what I am
