Day 262 - 13 Jun 96 - Page 40
1 because I am sure the Defendants may want to get it down.
2 The four questions are: how far each of the Defendants (and
3 they must be considered separately) participated in the
4 overall activities of the group during the relevant period,
5 what was the nature of that participation; in other words,
6 are we right to assert that they were core or leading or
7 principal, or whatever the word is, members of the group?
8 That does bear on the agency question, and that has been a
9 question in the case for a very long time now.
10
11 Second question: what were the instructions which the
12 Plaintiffs expressly or impliedly gave to the agents?
13
14 Third question: in relation to the anti-McDonald's
15 campaign, what (if any) responsibility did the agents, when
16 they were in the group, have for the continuation of that
17 campaign?
18
19 Fourth question: was anything that the agents did when they
20 were there susceptible of interpretation as acquiescence or
21 consent on the part of the Plaintiffs in the further
22 distribution of the words complained of?
23
24 My Lord, we have taken the view (rightly or wrongly) that,
25 those being the four questions which bear upon today's
26 argument that are relevant, material in the agents'
27 notes -- whether the notes of a particular occasion have
28 been disclosed in part or whether there were other
29 occasions which have not been disclosed at all -- material
30 in the agents' notes which does not bear in any way upon
31 any of those four questions is irrelevant.
32
33 I note in passing I am not suggesting that your Lordship
34 is, as it were, set in concrete over this. I do not like
35 submissions of that kind, and I do not now make it. But
36 I do note in passing, with some sense of reassurance, that
37 when the Defendants asked for interrogatories about other
38 occasions, your Lordship took the view -- and it was on the
39 hoof and it was a very quick argument, and just as quick a
40 ruling -- that the occasions which mattered were those at
41 which some discussion of McDonald's had taken place; and,
42 I would add, also those occasions which were attended by
43 one or other or both of the Defendants.
44
45 That extends, of course, not just to public or business
46 meetings of London Greenpeace, but also to any kind of
47 London Greenpeace event having either or both of those two
48 features: anti-McDonald's and/or the attendance of one or
49 other or both of the Defendants.
50
51 It was with that consideration in mind, although we reached
52 the conclusion on our own accord before your Lordship did,
53 that we made the selection from amongst the notes of which
54 occasions were relevant; and, having done that, we went on
55 to blank out those parts of the notes which we did disclose
56 on the ground of irrelevance, not on the ground of
57 privilege, because once we had made a decision to disclose
58 the notes, the privilege argument is dead save in so far as
59 the bit we blanked out is, as it was put in the
60 Great Atlantic case in the Court of Appeal, a separable or
