Day 207 - 23 Jan 96 - Page 44
1 session. The proper question for the witness who was not
2 at the rap session is: Do you agree whether that is
3 representative of McDonald's or not? What the trap is that
4 the Defendants are going to fall into, I fear, is to think
5 that this is representative; it may be that it is, but
6 until they have some evidence of it, it does not do them
7 any good.
8
9 MR. JUSTICE BELL: At some stage -----
10
11 MS. STEEL: We have had some evidence about the function of the
12 rap sessions, the purpose of the rap sessions, according to
13 the Plaintiffs. It is their choice to use this system and,
14 according to them, it is how they find out what the
15 problems are in the store.
16
17 MR. JUSTICE BELL: I appreciate that, but at some stage I am
18 going to need some help on the extent to which at all I can
19 take the answers as being evidence of the truth of what is
20 said. I appreciate that you are certainly entitled to ask
21 if it accords with the witness's view of matters. It is
22 rather difficult because the natural tendency is to say,
23 quite regardless of whether it is just one crew member or
24 the whole of the rap session who is making the comment --
25 that may be another point altogether -- if people were
26 complaining that such and such be so, then that is evidence
27 that it was so.
28
29 There is a legal evidential difficulty there, but let us
30 see where we get to, because what is going to be suggested
31 on behalf of the Plaintiffs is that an answer written down
32 on the rap session report form is no evidence of the truth
33 of what was actually written down, but let us not get tied
34 down on it for the moment.
35
36 MR. RAMPTON: No, my Lord, but if the witness is to be useful to
37 your Lordship and the Defendants to be fair to the witness,
38 surely, the right question must be -- with respect, I adopt
39 your Lordship's analysis of the legal position, it is a
40 point I have made once if not a dozen times before;
41 complaints do not prove anything, except the fact they were
42 made -- if the witness is asked: "Do you agree that is
43 representative of conditions in McDonald's?" and he says:
44 "Yes, I do", why, then the Defendants have admissible
45 evidence which they can allow, otherwise these rap session
46 notes do not help them one bit.
47
48 MR. JUSTICE BELL: Yes, I think it would be helpful to ask
49 always the witness whether he or she agrees with the
50 comment which is written there, because you are going to be
51 faced with this problem, neither the fact that it is
52 written down on the form, nor if the witness accepts that
53 there were a number of complaints about such and such a
54 statement of affair, neither of those matters are actually
55 evidence of the state of affair. If you can get him to
56 take one step further and say: "Yes, there were complaints
57 and it did happen", then it is the last answer which is the
58 one which is evidence.
59
60 MS. STEEL: Yes, but ------
