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

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