Day 186 - 10 Nov 95 - Page 24


     
     1   MR. JUSTICE BELL:  Let us not -- it was my fault, bringing in
     2        that distraction.  But do you dispute that the leaflet
     3        alleges conscious deception by McDonald's?
     4
     5   MS. STEEL:  Well, to be honest, I would say that, in terms of
     6        the nutrition guide, it does not actually say that they are
     7        being deliberately deceptive, just that they are not
     8        telling the whole story.  But that does not necessarily
     9        mean that they are deliberately not telling the whole
    10        story; it may be that they are just ignorant of the whole
    11        story.  I mean -- I do not know.  I just say, to some
    12        extent I am not especially worried, because we do not know
    13        the Plaintiffs were aware of the story.
    14
    15   MR. JUSTICE BELL:  Obviously, deception (whether conscious or
    16        just in fact) is part of the meaning of the leaflet; and,
    17        in fact, it is your point that it is the main part, rather
    18        than just how adverse the effect would be on you if you ate
    19        their food, which you say runs behind the main point which
    20        is what they have to hide, and deception.  I understand all
    21        that.  I am not expressing it very clearly at the moment,
    22        but I understand that point which you made.
    23
    24   MR. MORRIS:  Can I respond to this, because I think this is part
    25        of the legal key, if I am not mistaken, that the Plaintiffs
    26        have to satisfy you in order to claim deception is
    27        defamatory, or one of the things they have to satisfy you
    28        is that there is an element of -- it is not just
    29        criticising food products in however strong terms, but
    30        there has to be some element of malpractice or adulteration
    31        or ---
    32
    33   MR. JUSTICE BELL:  No.  At the moment, I do not -----
    34
    35   MR. MORRIS: -- fraud.
    36
    37   MR. JUSTICE BELL:  No.  If you are going on to say "or
    38        carelessness", then I do accept that.  You see, thinking
    39        back now, when I put "falsely" in, it depends whether they
    40        knew or merely ought to know, it might be said.  But I put
    41        "ought to know" in because that would make it defamatory
    42        because they are really being negligent, if they know it
    43        might be said that they are being fraudulent.  But let us
    44        not get bogged down -----
    45
    46   MR. MORRIS:  I think that is very, very important.
    47
    48   MR. JUSTICE BELL: Why?
    49
    50   MR. MORRIS:  Because I would say your meaning, as it stands, is 
    51        not defamatory, because it does not -- they have to show 
    52        that McDonald's are being deceptive about their specific 
    53        products or fraudulent about their specific products.  It
    54        cannot be that they talk about public policy issues but
    55        they do not give the whole truth; therefore, that is
    56        equivalent in law to adulteration or malpractice or fraud.
    57
    58   MR. JUSTICE BELL:  I do not understand that.  If a large
    59        corporation pumped out advertising praising the quality of
    60        its goods, when it knew or ought to know that that was

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