Day 242 - 29 Apr 96 - Page 43


     
     1   MR. JUSTICE BELL:  Yes?
     2
     3   MR. MORRIS:  I will say what I have to say and then Ms. Steel
     4        will say what she has to say.
     5
     6   MR. JUSTICE BELL:  Yes.
     7
     8   MR. MORRIS:  My position is that the Plaintiffs made an
     9        admission in order to remove an issue in the case.  That
    10        was their choice.  The fact that the very real risk is now
    11        part of the meaning should not change the fact that they
    12        did not plead originally any extent of risk and it was not
    13        an issue in the case at all.
    14
    15        If the Plaintiffs are saying that their admission did not
    16        include the matter of the extent of risk, it is because
    17        their pleading did not include the extent of risk, and
    18        whatever the meaning of any section of the leaflet that is
    19        decided, it does not bring an issue into the case that is
    20        not an issue which is originally pleaded by the Plaintiffs
    21        because it is up to them to decide which part of the
    22        leaflet and what it means and what the issues are.  This
    23        obviously could come up in other parts of the leaflet, that
    24        a meaning may be found which includes something which the
    25        Plaintiffs have not actually pleaded.
    26
    27        This may be where, I suppose, the conundrum, or whatever it
    28        really is, is that it seems to be a new issue in which case
    29        it should be dealt with, but in fact it is only a new issue
    30        because the Plaintiffs have not pleaded it at all if that
    31        is accepted by the court. So, that is the first thing.
    32
    33        Secondly, the Court of Appeal, we were awaiting for a copy
    34        of the judgment but, effectively, we concentrated on our
    35        appeal on the non-discretionary part of the application,
    36        which was the point about the admissions, removing an issue
    37        in the case, and the fact that a new issue had now
    38        seemingly come in, which is the very real risk issue, and
    39        the Court of Appeal did not make any ruling on the extent
    40        of the admissions and how it relates to the case and said
    41        it was a matter for this court to deal with.
    42
    43        So far as we were concerned, the Court of Appeal hearing
    44        was not against us or for us.  It was really left to this
    45        court to decide and we are asking the court to decide on
    46        that matter.
    47
    48        Mr. Rampton said that there are three issues now, as far as
    49        I can see:  Is McDonald's food unhealthy because of its
    50        nutritional contents or lack of them?  Will a consumption 
    51        of such food lead to a high fat diet?  Is a high fat diet 
    52        leading to a very real risk of getting the degenerative 
    53        diseases?
    54
    55        As far as the first one is concerned, is McDonald's food
    56        unhealthy, that has already been canvassed a thousand times
    57        over previously in the case.  Mr. Wheelock certainly went
    58        into great detail about that both in examination and
    59        cross-examination.  Although it is very interesting
    60        what Dr. Naismith says, a lot of it is going over old

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