Day 263 - 14 Jun 96 - Page 20


     
     1        occasions, as well.  Basically, we are alleged to be
     2        responsible for all distribution after that date; and, yes,
     3        there is the anti-McDonald's -- sorry -- the
     4        London Greenpeace fair in 1990, as well.
     5
     6   MR. JUSTICE BELL:  I understand the way you are putting it.  If
     7        you are right about relevance, I do not want you to argue
     8        about privilege and waiver of privilege in relation to
     9        that, because the same arguments would apply to
    10        post-September 1990 to pre-September 1990.
    11
    12   MS. STEEL:   OK.  If I just say -----
    13
    14   MR. JUSTICE BELL:  If you were right that it were relevant, then
    15        the same arguments would apply.  I would have to decide
    16        whether it was privileged, even though relevant, and then
    17        I would have to look and see if there was anything which
    18        amounted to a waiver.
    19
    20   MS. STEEL:  Right.  Just as a final point on this matter, in the
    21        voluntary particulars of the defence to counterclaim, the
    22        Plaintiffs set out a whole list of dates in addition to the
    23        ones that have already been set out, and those dates start
    24        from 5th February 1991; and bear in mind that we have said
    25        that Michelle Hooker was still involved in
    26        London Greenpeace until May 1991, they set out a whole list
    27        of dates when they say anti-McDonald's leaflets have been
    28        published.  On page 16 of their pleadings, at paragraph 10,
    29        they say:
    30
    31        "The Plaintiffs rely upon all the material referred to
    32        herein and served herewith in relation to the following
    33        issues:  (a)  the claim that the Defendants published the
    34        words complained of in the main action; (b) the claim for
    35        an injunction in the main action; and (c) the issue of the
    36        Defendants' malice in respect of the matters complained of
    37        in the main action."
    38
    39        So, clearly, they are viewing that the publication of any
    40        anti-McDonald's leaflet after the service of writs is to be
    41        taken into consideration.  Their view is that it is
    42        relevant in terms of proving the issues in the main
    43        action.  Of course, if they are willing to now withdraw
    44        that, then that will be fine by us.
    45
    46   MR. MORRIS:   If they are not willing to withdraw it, we would
    47        say that all the post-1990 things we have asked for are
    48        clearly relevant.
    49
    50   MS. STEEL:  Just a final point about the post-1990 events or 
    51        post-writs.  Just that consent -- I mean, you may find that 
    52        consent is about a particular occasion, what happened on 
    53        one particular day, whether there was consent for each
    54        individual day.  But we are entitled to argue that it is
    55        the wider overall picture, and that if they consented to it
    56        on several occasions over a period of two years, then they
    57        have consented to it on all occasions when it has been
    58        distributed other those two years; and, obviously, it would
    59        be relevant to that as well, the notes would be relevant to
    60        that as well.

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