Day 307 - 27 Nov 96 - Page 22
1 something in one of the other leaflets which is not in the
2 leaflet complained of, because if there is I don't have it
3 in mind at the moment.
4
5 MS. STEEL: I am not quite sure what you are referring to.
6
7 MR. JUSTICE BELL: Well, you have referred to, you have taken
8 exception to, the reference to other material -- and it is
9 a perfectly valid point to make -- whether there is
10 anything more in the other material than there is in the
11 leaflet in question. But I cannot think of anything which
12 is in the other material unless it is a reference to
13 something in, for instance, the A5 leaflet which is not
14 covered in the leaflet complained of. There may be.
15
16 MS. STEEL: There are bits like HCFCs and methane, things like
17 that.
18
19 MR. JUSTICE BELL: At the moment, it seems to me, even though
20 it is perfectly reasonable of you to make the point, put
21 the argument that the statements in the press release, the
22 background briefing and the leaflet to customers, must be
23 taken to refer to the leaflet which is complained of in the
24 proceedings; that is the leaflet which all the litigation
25 is about, not other material. In fact, it seems to me at
26 the moment, it does not make any difference.
27
28 MS. STEEL: The important point about it, it is the fact that
29 the Plaintiffs have absolutely no evidence that the fact
30 sheet has been distributed since the time of the writ, with
31 the exception of the allegation of it being distributed in
32 court.
33
34 MR. JUSTICE BELL: Just pause a moment. (Pause) Yes, I see.
35
36 MS. STEEL: Yes, and the other allegation that it was
37 distributed through McSpotlight, and that was launched in
38 February of this year, and the point being that both of
39 those incidents of alleged publication by us actually took
40 place after the Plaintiffs had already issued their press
41 releases and leaflets, and so certainly in terms of the
42 -----
43
44 MR. JUSTICE BELL: When you say 'both', what do you mean -- the
45 McSpotlight and what?
46
47 MS. STEEL: When they had the evidence of Mr. Howes, which we
48 say comes to nothing anyway, but those are the two
49 incidents, the only two alleged incidents of publication,
50 since the issue of writs on us, of the fact sheet. The
51 important point being that both of those two alleged
52 incidents took place after these press releases and
53 leaflets were issued by McDonald's, and therefore they
54 could not, for example, rely on that distribution to
55 justify their argument of privileged self-defence. I mean,
56 obviously, the two alleged incidents of publication were
57 after the counterclaim was served and after the defence to
58 counterclaim was served. So they cannot, cannot, be
59 referring to that in their pleadings.
60
