Day 084 - 07 Feb 95 - Page 02
1 Tuesday, 7th February 1995.
2
3 MR. JUSTICE BELL: Mr. Morris, before we continue with the
4 argument I think it is desirable, first of all, if I give
5 my ruling on the BSE point. Then I think it would be
6 helpful if I go on to give my ruling on the principle to be
7 applied in relation to what documents are in the power of
8 the First and Second Plaintiffs. I have already suggested
9 to Miss Foot that the rulings be transcribed separately and
10 separately between themselves for ease of reference if
11 required in the future.
12
13 (For rulings, please see separate transcripts)
14
15 That completes the two rulings which I make at this stage.
16 To go back to the main transcript: The purpose of making
17 the second ruling is so that it can be borne in mind if
18 what amounts to an application for a specific discovery is
19 being made in relation to any particular documents, because
20 it seems to me that it is probably convenient, if and when
21 that is so, to deal not only with "power" which may or may
22 not be the end of the matter, but also with any questions
23 which may arise as to relevance or whether disclosure is
24 necessary for the fair disposal of the case or the
25 avoidance of cost.
26
27 The next step is to go on with the argument. If you want
28 to read through on Case View the ruling before we go on,
29 I will certainly rise for five minutes or so to let that
30 happen. It is entirely up to you.
31
32 MR. MORRIS: I did not quite follow it -- it was quite
33 complicated at the end -- but is the effect that each
34 situation has to be taken on its merits in terms of what
35 the contractual arrangement seems to be?
36
37 MR. JUSTICE BELL: Yes. In so far as the enforceable legal
38 right is alleged to arise out of a contract, in the Lonrho
39 case, that was not a contractual context, that was
40 subsidiaries in Rhodesia -- I forget the other country --
41 of Shell Petroleum whose documentation Lonrho wanted. So,
42 that was not a contractual case as such. But in any case
43 where you argue as, for instance, you were arguing
44 yesterday afternoon, looking at the McDonald's
45 specification, there is, you would argue, a contractual
46 right for McDonald's to call for a document or inspect it,
47 which you argue not only gives them the right to look at it
48 but to take a copy if they wish.
49
50 What I am saying is you have to look at the contract and
51 see whether it gives McDonald's that legally enforceable or
52 unlimited right. Does it give them a right to inspect the
53 document and take a copy, first of all? If it does, is
54 there by the terms of the contract (as there was in the
55 Unilever case) a restriction on the purpose for which it is
56 inspected and a copy taken, i.e. can they just take it for
57 monitoring the contract, or can they take it for the
58 purposes of litigation if they wish?
59
60 Can they, in other words, say: "I want a copy" and if, put
