Day 083 - 06 Feb 95 - Page 23
1 not matter -- there would have been a nice argument back in
2 1983, or until the shareholding changed, whether the
3 Plaintiffs, or either of them, in this case had the power
4 to produce those documents which Mr. Walker produced
5 himself voluntarily the other day. That would have
6 depended, perhaps, less on the contractual position between
7 McDonald's and McKey which, presumably, was the same as it
8 is today -- McKey's being a separate legal entity -- less
9 on that argument, in other words, what I am saying is this:
10 Using the contractual position only, if we are right
11 about our submission, McDonald's would have had no better a
12 right or power in those days than they do now. However,
13 there might have been a nice argument whether or not their
14 shareholding in McKey's gave them some further or different
15 enforceable legal right to disclose the documents or to
16 call for the documents to be disclosed. But, my Lord, that
17 is not the position now.
18
19 If your Lordship decided to widen the ambit of Brazilian
20 discovery, then a question arises: Are there any
21 documents, relevant documents, in the possession of
22 McDonald's Brazil? If there are, does either of the
23 Plaintiffs -----
24
25 MR. JUSTICE BELL: Can I put a stage in before that? The first
26 question would arise whether there are any documents within
27 the class I have described which are in the possession of
28 the First or Second Plaintiffs. They would then be
29 listed. There might be an argument about whether I should
30 order their disclosure for inspection. But if there were
31 documents which might be relevant but which by the test set
32 out your clients, i.e. the First and Second Plaintiffs,
33 would say were not and are not within the First and Second
34 Plaintiffs' power, they just would not appear on the list
35 so that no-one else would know anything about them at all.
36
37 MR. RAMPTON: That is one way of looking at it. There are many
38 ways of dealing with it. If one stood on one's strict
39 rights -----
40
41 MR. JUSTICE BELL: That would be the position, would it not?
42
43 MR. RAMPTON: If we took the view (and it might be your Lordship
44 would have to rule about this in the light of evidence
45 which your Lordship does not presently have) for example,
46 that the McDonald's Corporation, the First Plaintiff in
47 this action, was in the same relation to its Brazilian
48 subsidiary as was Shell to its subsidiaries in Rhodesia and
49 South Africa, then we would be quite entitled to take the
50 view that that did not give us a power for the purposes of
51 Order 24 to disclose any of the Brazilian subsidiaries'
52 documents.
53
54 Further than that, it is quite certain, if our analysis of
55 the legal position is right, that the Brazilian subsidiary,
56 never mind the corporation or the UK company, would have no
57 legal right to call for the documents if they existed in
58 the hands of, for example, Braslo.
59
60 MR. JUSTICE BELL: Or was it Weddon, the name of the -----
