Day 072 - 12 Jan 95 - Page 05
1 passages might, directly or indirectly, help us to advance
2 or damage the Plaintiffs' case or advance our own case?
3 That seems to be the test. In other words, it seems to me
4 that the reason that Lord Justice Leggatt made that fairly
5 extensive statement is -- extensive in meaning rather than
6 in length -- because, presumably, the practice could creep
7 in where three-quarters of all documents disclosed in every
8 trial of this type would be partially blanked out and lead
9 to all sorts of debates, recriminations, applications and
10 misunderstandings and whatever.
11
12 MR. JUSTICE BELL: That is not necessarily so because a party
13 has to decide whether to blank things out or not. Many,
14 for instance, of the documents disclosed on both sides in
15 this case have parts of them -- in some cases it may be
16 most of the document -- which is not really relevant to any
17 issue in the case, but some parts are, and you have
18 decided: "Oh, well, we do not mind you seeing the rest"
19 and McDonald's have said: "Oh, we do not mind them seeing
20 the rest". But if we come to a document where McDonald's
21 have chosen to take a different view or -- I do not think
22 you have done it so far -- if we come in the future to a
23 document which you disclosed where you have chosen to take
24 a different view and have blanked out parts, I have to
25 apply the law.
26
27 MR. MORRIS: Yes, but that is just the point I am making, which
28 is that if a principle is established that the burden of
29 proof is on the party seeking discovery to -- if it is
30 quite a great burden of proof to say that it must be
31 relevant, then obviously in the future the power to blank
32 out is going to lead to more and more blanking out and
33 that, I would have thought, is not the sort of practice
34 that would be welcomed by the legal system.
35
36 I can understand that the spirit of the decision of the
37 Court of Appeal may apply to something in a document which
38 is completely outside of all the spheres and completely
39 unrelated to the issues -- I mean, for example, I do not
40 know, this is not unrelated to the issues in this case;
41 these are documents about the issues of this case, about
42 the relations between McDonald's and their local residents,
43 it is about planning applications which they have made,
44 that they were making, and the residents' response. To me,
45 it is so obviously relating to the issues, directly or
46 indirectly, I do not believe that this is the kind of thing
47 which the Court of Appeal is saying is the spirit of the
48 decision that they made, because the power then does become
49 that, as you say, half of the documents in this case, if
50 not 90 per cent of them, could have whole chunks blanked
51 out, and I do not think that is going to be very helpful in
52 trials in this country.
53
54 So, I think, really, the reason that Lord Justice Leggatt
55 clarified what the test was in the very, very wide sense,
56 that whether it was reasonable to suppose a blanked out
57 piece may directly or indirectly enable a party to advance
58 or damage a case is because he was, in my opinion,
59 obviously concerned that having established a point of law
60 at the Court of Appeal, they did not want it to become
