Day 070 - 20 Dec 94 - Page 36


     
     1        which, for perfectly good reasons of their own and nothing
     2        to do with the issues in the case, they are unwilling to
     3        supply because they want to protect the identity of the
     4        people who supply them and the welfare of those employees
     5        and the securities of the property, the Defendants have to
     6        make a case, and they cannot expect the assistance of the
     7        Plaintiffs, unless there is some issue to which the
     8        application for discovery -- or whatever it might be,
     9        interrogatories -- can be said to go.  They cannot expect
    10        to the cooperation of the Plaintiffs in supplying them with
    11        information which, no doubt, they would very much like to
    12        have in order to see (and I stress the word "see") whether
    13        there is a case which they could make if they had that
    14        information.  It is up to them to make their case.
    15        I anticipate an argument which might be raised in answer to
    16        what I have just said.
    17
    18        So far as the defence to counterclaim is concerned, it is
    19        up to us to make a case.  If I do not choose to make a
    20        positive case in response to the counterclaim that the
    21        Defendants knew that every slaughterhouse from which the
    22        Plaintiffs take meat was in every respect an ideal
    23        establishment, then that is a matter for me.  That is not a
    24        case which I have made on the pleadings, because my defence
    25        to counterclaim is, in effect, this: "What you have said in
    26        the leaflet is untrue.  Your defence shows that you know
    27        that it was untrue, and yet you have persisted in making
    28        these allegations", which, as your Lordship has earlier
    29        observed, is a mirror image of the main action.
    30
    31        It comes down to this:  the Defendants' fate in this
    32        action, to very large extent -- and I leave out of account
    33        questions of malice, fair comment and publication --
    34        depends on what they can prove.  What they are not entitled
    35        to do is to take a very large fishing net and seek to trawl
    36        the Plaintiffs' documents and knowledge for information
    37        which they do not have and never have had.
    38
    39        For that reason, my Lord, this application is wrong in
    40        principle.  It is also in the wrong form, but that is
    41        beside the point.
    42
    43        If the Defendants do not know of slaughterhouses or
    44        circumstances in slaughterhouses from which the Plaintiffs
    45        take their meat which contravene what the Defendants regard
    46        as proper conditions for animal welfare, that, I am afraid,
    47        is not something in which they can expect the cooperation
    48        of the Plaintiffs or the assistance of the court.
    49
    50   MR. JUSTICE BELL:  It would be different if one of your 
    51        witnesses positively said:  "We get some meat from an 
    52        abattoir in Gloucestershire, and the situation there is as 
    53        follows."
    54
    55   MR. RAMPTON:  Yes, of course; and by the same token, by
    56        precisely the same token, the Defendants have now lit upon
    57        a witness who gives evidence about a particular
    58        slaughterhouse, of which the Defendants were previously
    59        unaware, of which certainly the Plaintiffs have given no
    60        discovery (and never would have done), but because they now

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