Day 308 - 28 Nov 96 - Page 31
1
2 We say it is important that Helen was not challenged over a
3 wide range of matters to do with the counterclaim and
4 malice in general, when she was in the witness box.
5
6 Even McDonald's own agents, apart from Mr. Clare, the other
7 four agents called as witnesses could say nothing to say
8 that the Defendants, and London Greenpeace in general, did
9 not believe what they were saying was true, in 1990; and,
10 if that was the case, obviously, as it was then, then it is
11 even more so now, five years and a huge amount of
12 preparation and information gathering since.
13
14 A very important point in terms of the counterclaim: the
15 burden of proof on McDonald's to establish the factual
16 basis for their allegation of lying against me and Helen is
17 very high, because it is a serious allegation, and the
18 balance of probabilities should be weighted greatly towards
19 them.
20
21 I have nearly finished now. In terms of the counterclaim,
22 we point out that the discovery in this case on the issues
23 was limited to our pleadings and matters that came into
24 issue as a result of our pleadings during the case; and
25 that although we did argue for discovery related to the
26 issues in the counterclaim, that McDonald's had a burden of
27 proof and, therefore, a burden of discovery to justify. It
28 was refused and -- well, it is important to state that.
29
30 MR. JUSTICE BELL: A lot more water went under the bridge after
31 that decision.
32
33 MR. MORRIS: Right. McDonald's, in the press release, point 9
34 in the press release, they are saying that we are
35 responsible for distribution of the fact sheet; and that is
36 prejudging the issue in this case. That, clearly, in
37 another circumstance, would be contempt of court. All I am
38 saying is that McDonald's say that as a fact.
39
40 The last point I have to make is that I agree with Helen
41 about damages. I do not think that McDonald's, even if
42 they win the main claim, are entitled to win damages. We
43 will make an application on that in writing -- a legal
44 submission, sorry, in writing.
45
46 The final thing I am going to say now -- and I am not going
47 to stand up again, you will be pleased to know -- is that
48 we have not had any effective help with our closing
49 speeches, apart from some help on some legal matters, and
50 we have only be been able to identify possibly 20 per cent
51 of the references in transcripts that we would like to have
52 referred to if we had time, resources and experience. So,
53 I think that should be borne in mind.
54
55 We have had the disadvantage of having to go first, and
56 Mr. Rampton has the advantage of having heard our case and
57 had the extra time to prepare, as a result of that.
58
59 Can I just say one case on the admissible documents: that
60 we generally accept the admissibility -- both parties
