Day 149 - 06 Jul 95 - Page 11


     
     1
     2   MR. MORRIS:  Right.
     3
     4   MR. JUSTICE BELL:  No application has been made to strike out.
     5        So that is your platform.  What I want to know is where you
     6        say you go from there?
     7
     8   MR. MORRIS:  We are not making our closing speeches, but the
     9        point is that, as far as we understand the law, we are
    10        entitled to discovery on a pleading, McDonald's pleadings
    11        accepted as being based upon reasonable belief.
    12
    13   MR. JUSTICE BELL:  Tell me what discovery you say you are
    14        entitled to?
    15
    16   MR. MORRIS:  I cannot remember.  To be honest, I just assumed
    17        that was -- what you said we had to do, was get over the
    18        first stage of -- well, if I go to your -- I do not
    19        understand what the objection was, because -----
    20
    21   MR. JUSTICE BELL:  I said I would be prepared to listen to any
    22        future argument you made about this, and that is what I am
    23        doing.
    24
    25   MR. MORRIS:  Yes.
    26
    27   MR. JUSTICE BELL:  You can refer me to my previous ruling, by
    28        all means, but I am quite prepared to start from scratch.
    29        So I am giving you the opportunity to do that.  What I want
    30        to know is what documentation you say the Plaintiffs should
    31        list and disclose, if they have it in their custody,
    32        possession or control, which has not so far happened.  It
    33        is as simple as that.  It is absolutely grass roots stuff.
    34
    35   MR. MORRIS:  Yes.  Maybe I have misunderstood what I was going
    36        to be asked to do.  If I just say the way I saw the
    37        situation, and maybe go away and reorganise it.  But
    38        I thought what happened is that you made a ruling, which we
    39        referred to, I think it was yesterday -- the ruling was on
    40        27th February -- and then, in response to that ruling, on
    41        Day 98, from pages 65 to 69, I made a submission that we
    42        would be entitled to documents -- I thought I was being
    43        asked to justify a reasonable belief.
    44
    45   MR. JUSTICE BELL:  What you are saying is that when I made the
    46        ruling on 27th February, I was working on the statement
    47        which you have referred to, which did not include
    48        Franz Wertz -- who, in any event, may be a red herring so
    49        far as this application is concerned -- and that what
    50        I should have gone to is the pleading on page 16; not 
    51        bothered about what the evidence was or not concentrated on 
    52        that, but concentrated on the pleading which you have on 
    53        page 16 of tab 1.
    54
    55   MR. MORRIS:  I think the mix-up was because I put forward the
    56        view -- as a start of my application for discovery,
    57        probably -- that the matter was admitted, and then the
    58        discussion developed over a period of days on:  had the
    59        matter been admitted by the Plaintiffs or had there been,
    60        as the Plaintiffs considered, no evidence whatsoever?

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