Day 083 - 06 Feb 95 - Page 18
1 My Lord, then finally on this topic, tab 5 which is a
2 Chancery case, decided by Mr. Justice Millett, McMillan
3 Incorporated v. Bishopsgate Investment Trust Plc and Others
4 (No. 2), Industrial Cases Reports 1993, page 385. My Lord,
5 the facts in this case were somewhat peculiar, unlike the
6 Gillette v. Unilever case, not particularly analogous to
7 the facts of present case.
8
9 The position there was that an employee of the Second
10 Defendants (who was not a party to the action) had given
11 certain evidence which had been transcribed in the course
12 of a liquidation. The Plaintiffs sought discovery of those
13 transcripts from the Second Defendants, asserting that as
14 H, the Third Party, who had given the evidence was their
15 employee, they had a power to direct him to disclose the
16 transcripts. Mr. Justice Millett held for a number of
17 reasons that was not so, and refused to make the order with
18 regard to the generality of the documents.
19
20 There a number of aspects of case which we believe have
21 nothing do with the question your Lordship has to decide in
22 this case, but, my Lord, there is perhaps a useful short
23 passage from the judgment of Mr. Justice Millett reflecting
24 the approach of Mr. Justice Whitford in the Patents court
25 starting at page 389, at the bottom of the column at
26 letter H:
27
28 "However, lest it be thought that that is the sole ground,
29 I should add that in my judgment the document is not in any
30 event 'within the power' of Mr. Haas's employers."
31
32 Then, my Lord, he recites what Lord Diplock had said in
33 Lonrho v. Shell which I have already read to your
34 Lordship. Over the page, just below letter A, the judgment
35 goes on:
36
37 "So the question resolves into whether Mr. Haas's employers
38 had a presently enforceable legal right to obtain from
39 Mr. Haas inspection of the transcripts of the evidence he
40 gave to the liquidator; or to put it the other way round,
41 could Mr. Haas properly and without breach of his
42 obligations under his contract of employment refuse a
43 demand from his employers to allow inspection of the copies
44 of the transcripts?" My Lord, in due course, Mr. Justice
45 Millett answers that question in the negative, refusing to
46 make the order.
47
48 My Lord, I cited that for the reason that it poses the
49 question in the way in which we would invite your Lordship
50 to pose it: If Mr. Walker, or any other of McDonald's
51 immediate suppliers, were to refuse to disgorge documents
52 in their possession, their own documents kept in pursuance
53 of their contract with McDonald's, if they refused to
54 disclose those documents for the purposes of this
55 litigation, or any other purpose extraneous to the
56 performance of the contract, could they be said to be in
57 breach of the contract with McDonald's? My Lord, we would
58 assert that the answer to that question is plainly that
59 they would not and, my Lord, that it therefore follows that
60 McDonald's do not have a presently enforceable or
