Day 307 - 27 Nov 96 - Page 02
1 Wednesday, 27th November 1996
2
3 MS. STEEL: I just wanted to make an application, really. We
4 made a previous application to go second with the closing
5 speeches overall for various reasons; for example, we had
6 not had enough time to prepare, that we were not
7 experienced in presenting a closing speech and no
8 experience of how to do it, that we had no legal back-up,
9 and so on. Obviously, there is an advantage to going
10 second because you get to hear the other side's case first;
11 also, bearing in mind that we have the counterclaim where
12 the burden of proof is on McDonald's because they are the
13 Defendants in that part of the action.
14
15 Now, thinking about this this morning, we do not really see
16 why we should go first on the counterclaim. Mr. Rampton
17 said, I think on 14th October, that his closing speech was
18 ready. Bearing in mind that the burden of proof is on
19 McDonald's for this part of the case, we would like to
20 apply for them to go first and put what their case is on
21 the counterclaim, and then we can respond to that on the
22 counterclaim matters, which would be the usual order of
23 events which has been adopted for the main claim in this
24 action.
25
26 So, really, that is what we are applying for now, that
27 Mr. Rampton, since he is already ready and has been since
28 the middle of October, goes first with the counterclaim.
29
30 MR. JUSTICE BELL: Do you want to say anything, Mr. Morris?
31
32 MR. MORRIS: No, I agree.
33
34 MR. RAMPTON: My Lord, this takes me by surprise, naturally
35 enough. The first thing to be said is that the Court of
36 Appeal gave the stamp of approval to the order that
37 your Lordship had made. That is number one. Secondly,
38 I think it says in the rules -- I have not found it yet --
39 that unless there is some very good reason why the order of
40 speeches generally should be changed, then they remain as
41 they are, notwithstanding that the burden of proof on some
42 aspects of the case may be on the party that goes last. I
43 am trying to find it.
44
45 MR. JUSTICE BELL: I mean, the burden of proof, in fact, in
46 large parts of this case is on the Defendants.
47
48 MR. RAMPTON: Exactly, and the burden of proof on other parts,
49 malice, proof of defamation, proof of publication is on me.
50
51 MR. JUSTICE BELL: Yes. The practice always is if there is a
52 scintilla of a claim, although a claim is made, it is
53 clearly very much subsidiary to the counterclaim, and it
54 might be treated as if the Defendants were Plaintiffs and
55 the Plaintiffs were Defendants. But my experience has
56 always been that where there is a counterclaim, in both the
57 technical and real sense, with a substantial claim, then
58 the order of the speeches is, as I have laid down here,
59 that the Defendants go first addressing the judge on both
60 claim and counterclaim.
