Day 308 - 28 Nov 96 - Page 31


     
     1
     2        We say it is important that Helen was not challenged over a
     3        wide range of matters to do with the counterclaim and
     4        malice in general, when she was in the witness box.
     5
     6        Even McDonald's own agents, apart from Mr. Clare, the other
     7        four agents called as witnesses could say nothing to say
     8        that the Defendants, and London Greenpeace in general, did
     9        not believe what they were saying was true, in 1990; and,
    10        if that was the case, obviously, as it was then, then it is
    11        even more so now, five years and a huge amount of
    12        preparation and information gathering since.
    13
    14        A very important point in terms of the counterclaim:  the
    15        burden of proof on McDonald's to establish the factual
    16        basis for their allegation of lying against me and Helen is
    17        very high, because it is a serious allegation, and the
    18        balance of probabilities should be weighted greatly towards
    19        them.
    20
    21        I have nearly finished now.  In terms of the counterclaim,
    22        we point out that the discovery in this case on the issues
    23        was limited to our pleadings and matters that came into
    24        issue as a result of our pleadings during the case; and
    25        that although we did argue for discovery related to the
    26        issues in the counterclaim, that McDonald's had a burden of
    27        proof and, therefore, a burden of discovery to justify.  It
    28        was refused and -- well, it is important to state that.
    29
    30   MR. JUSTICE BELL:  A lot more water went under the bridge after
    31        that decision.
    32
    33   MR. MORRIS:  Right.  McDonald's, in the press release, point 9
    34        in the press release, they are saying that we are
    35        responsible for distribution of the fact sheet; and that is
    36        prejudging the issue in this case.  That, clearly, in
    37        another circumstance, would be contempt of court.  All I am
    38        saying is that McDonald's say that as a fact.
    39
    40        The last point I have to make is that I agree with Helen
    41        about damages.  I do not think that McDonald's, even if
    42        they win the main claim, are entitled to win damages.  We
    43        will make an application on that in writing -- a legal
    44        submission, sorry, in writing.
    45
    46        The final thing I am going to say now -- and I am not going
    47        to stand up again, you will be pleased to know -- is that
    48        we have not had any effective help with our closing
    49        speeches, apart from some help on some legal matters, and
    50        we have only be been able to identify possibly 20 per cent 
    51        of the references in transcripts that we would like to have 
    52        referred to if we had time, resources and experience.  So, 
    53        I think that should be borne in mind.
    54
    55        We have had the disadvantage of having to go first, and
    56        Mr. Rampton has the advantage of having heard our case and
    57        had the extra time to prepare, as a result of that.
    58
    59        Can I just say one case on the admissible documents:  that
    60        we generally accept the admissibility -- both parties

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