Day 312 - 11 Dec 96 - Page 31
1 their workforce, children and animals have real physical
2 and mental and human rights implications.
3
4 MR. MORRIS: Can I say, the point there, I think it is pretty
5 clear, but the point there is they are saying if someone
6 shouts at you in the street you have the right of
7 self-defence, but we are saying that it is 100 times more
8 important, the right of self defence if someone attacks you
9 in the street, and that is the point, the self defence that
10 would accrue to the literature critical of the company
11 would be that they are defending a real attack on
12 employees, children and animals. Not just a verbal
13 criticism, which a company like McDonald's should be able
14 to handle and deal with anyway.
15
16 MS. STEEL: (C), on the facts of the case the burden of proof
17 ought to be reversed. That is to say, the Plaintiffs
18 should bear the burden of proofing that the words
19 complained of are untrue, not fair comment, and that they
20 are damaging to their reputation. Only by such a shift in
21 the burden of proof can this court maintain the right
22 balance between free speech and the protection of
23 commercial reputation.
24
25 In this respect the Defendants repeat and adopt their
26 arguments set out above in relation to the defence of
27 justification.
28
29 (D), the Plaintiffs are not separate entities in the eyes
30 of the public. The public only knows McDonald's, it has no
31 idea about the identities of the specific legal entities on
32 either side of the Atlantic, and to allow both the first
33 and second Plaintiffs to recover would be to allow double
34 recovery.
35
36 I mean, it is a bit unclear as to which of the two
37 companies has a reputation to protect in this country, but
38 we would say that clearly in the mind of the public there
39 is just one company and so it would be ridiculous to...
40 You know, one company known as McDonald's, and it would
41 therefore be ridiculous for both parties, both Plaintiffs,
42 to be awarded damages. I mean, we could say that since the
43 second Plaintiff is a subsidiary of the First Plaintiff,
44 the case could be struck out against the second Plaintiff.
45 That is particularly in terms of damages really.
46
47 This is a separate point which is not connected to all the
48 other points. It may be there should have been an odd
49 number. I do not know.
50
51 On the question of trial tactics and procedure, we submit
52 that it is a cardinal rule of advocacy that if any part of
53 a witness testimony is challenged such challenging should
54 be put to that witness in the witness box. Only by such
55 means can the witness answer any such challenge and/or
56 clarify any misunderstanding. The course adopted by the
57 Plaintiffs in this case, that of neglect to put challenges
58 directly to the witnesses and yet inviting the court to
59 disregard them or their evidence, has deprived the court of
60 the opportunity to properly consider the evidence of key
