Day 083 - 06 Feb 95 - Page 20
1 and I could tell, this is the first time this happens. In
2 the second paragraph it makes the provision for inspection
3 and then it says in the last sentence -- it does appear to
4 be a new sentence, so far as we can tell -- "All records
5 will be found in a confidential file and are to be retained
6 for a minimum of three years".
7
8 MS. STEEL: You also find that on page 11 under "L1".
9
10 MR. RAMPTON: No, my Lord, it is not quite the same; the word
11 "confidential" is not inserted in that second sentence
12 under "1". One does find it in February 1990. What I was
13 going to say about that was this, or two things actually,
14 whatever the specific terminology of these specifications,
15 it is, we would submit, as a matter of law, or as a matter
16 of construction, clear that any court would say that the
17 suppliers' records of what they are doing in performance of
18 their contractual obligations to McDonald's would always be
19 confidential. That, of course, in itself is not a bar to
20 discovery if the power exists in McDonald's to compel
21 disclosure of these documents for the purposes of this
22 litigation or indeed, for any other purpose. But once it
23 is apparent that the information is confidential, then it
24 lends support to the argument that this is not a contract
25 which permits disclosure of the information for purposes
26 extraneous to the contract.
27
28 In other words, it would be part of the suppliers' defence
29 to an action by McDonald's for specific performance if
30 McDonald's sought to assert that they had a right under the
31 contract to call these documents for the purposes of this
32 litigation.
33
34 Against that background -- there is a good deal more but
35 perhaps your Lordship does not need to see any of that --
36 there is perhaps one other reference which I ought to give
37 your Lordship: Page 33 is an example from 1991. I dare
38 say there may be earlier ones which I have missed. There
39 is a reference to something called a Black Book: "Supplier
40 shall maintain an up-to-date Black Book of production
41 processes for each plant and have it available for
42 inspection at each production location." Then it sets out
43 what the topics that are to be described in detail in the
44 Black Book are: "Raw material specifications and required
45 incoming tests, add-back/rework policy, manufacturing
46 equipment, process procedures, formula, in-process testing
47 and critical control points (HACCP), quality control
48 testing, equipment maintenance ... and plant sanitation
49 procedures.
50
51 Supplier shall provide McDonald's Quality Assurance
52 Department a complete evaluation and explanation of
53 production formula, labelling declaration, nutritional
54 information, shelf life and microbiological stability
55 whenever a production process or packaging change is
56 effected. This information must be provided in writing and
57 in advance of any change being made."
58
59 My Lord, so as far as that first paragraph is concerned,
60 I make a distinction, if I may, between what is said there
