Day 083 - 06 Feb 95 - Page 21


     
     1        in the first paragraph, so far as this question of
     2        discovery is concerned, and what is said in the second
     3        paragraph.  Taking the two paragraphs together as a whole,
     4        it would be difficult to find a more characteristic
     5        description of confidential contractual information than is
     6        represented by those two paragraphs.
     7
     8        The difference for the purpose of this application for
     9        discovery is perhaps this, that so far as the first
    10        paragraph is concerned, if we are right in our
    11        interpretation of the authorities, McDonald's have no power
    12        under Order 24 in relation to the Black Book and its
    13        information.  But, if and in so far as information had been
    14        provided to them and was in their possession under the
    15        second paragraph, then the fact that the information might
    16        be commercially confidential or contractually confidential
    17        would be no bar to the obligation in discovery because the
    18        information would be in McDonald's possession.
    19
    20        My Lord, what I am submitting applies to documents held by
    21        suppliers who are in a contractual relationship with
    22        McDonald's, that is to say, in this country, as far as
    23        I know, Sun Valley and McKey, the only relevant ones any
    24        way for this case.  My Lord, so far as America is
    25        concerned, I am not able to say from my recollection who
    26        are what one might call the immediate contractual
    27        suppliers.  Certainly, it may be that Tysons are and it may
    28        be that -- this is only a failure of memory on my part --
    29        Keystone Foods or whatever are.
    30
    31        If McDonald's have no power in this sense over the
    32        documents of those immediate contractual suppliers because
    33        the immediate contractual suppliers have no contractual
    34        obligation to disclose, McDonald's, therefore, having no
    35        enforceable legal right over those documents, a fortiori,
    36        my Lord, it must follow, if we are right about that, that
    37        McDonald's have absolutely no say in whether documents
    38        should be disgorged by, for example, slaughterhouses or
    39        whatever that supply the immediate suppliers.
    40
    41        My Lord, I distinguish the legal position and the stance
    42        which, if this submission is correct, McDonald's may or may
    43        not decide to take, (but if they do are entitled to take in
    44        relation to any order for discovery the Defendants may ask
    45        for) I distinguish that from the position where, as your
    46        Lordship once said recently, de benesse Mr. Walker or
    47        anybody else out of the kindness of their heart may decide
    48        that he will help your Lordship to a decision in this case
    49        by disclosing relevant documents.  My Lord, that happened
    50        quite recently in relation to the 83.57, or whatever it 
    51        was, tonnes of Brazilian beef.  Mr. Walker produced a sheaf 
    52        of contemporaneous documents which he had in his file.  My 
    53        Lord, that, in our submission, is the position in law.
    54
    55   MR. JUSTICE BELL:  What is my position at this stage?
    56        Obviously, I can give, as it were, "a declaratory judgment"
    57        of what I understand the legal test to be applied is if any
    58        issue arises either now or in the future and I can,
    59        applying that test, make a specific ruling on any
    60        particular class or description of document or individual

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