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

Prev Next Index