ON APPEAL FROM HER MAJESTY'S COURT OF APPEAL (ENGLAND)

AGAINST
Helen Marie Steel
First Petitioner
and
David Morris
Second Petitioner

1.  That this petition is lodged out of time because; 

our application to the Court of Appeal for leave to appeal was not heard until 30th April, one month after the final order of the Court of Appeal.  We believed that the time for lodging was one month from the date the order was sealed (as in the High Court), but were then told by the House of Lords Office that it ran from the date of the final order, and that we were already out oftime, but could lodge the petition nonetheless as out of time.  We are unrepresented and the case is a very substantial one, so preparing this petition has taken a considerable amount of time. 

2. That we are applying for leave to appeal against the Final Order, dated 18th May 1999, of Lord Justices Pill, May and Keane in Court 1 at the Court of Civil Appeals, that our Appeal against the Order of Mr Justice Bell dated 6th August 1997 be allowed only to the extent that: 

a.       the sum of £18,000 be substituted in place of £27,500 in respect of the First Defendant save that the Defendants' joint and several liabilities order do stand;

b.       the sum of £20,000 be substituted in place of £30,000 in respect of the Second Defendant save that the Defendants' joint and several liabilities order do stand;

c.       there be no order as to costs.

3.   McDonald's Corporation and McDonald's Restaurants Ltd were the respondents in the Appeal in  he Court of Civil Appeals (solicitors Barlow, Lyde and Gilbert).

4.   The case was an action for defamation brought by the Plaintiffs/Respondents in September 1990 (initially the claim was for publication on specified dates between October 1989 and April 1990, but in April 1996 the claim was extended to cover all publication between September 1987 and September 1990), with a Counterclaim against the second Plaintiff for defamation brought by the defendants/Appellants in 1994 before the trial began. The trial began on June 28th 1994 and lasted 313 court days. 

5.    McDonald's alleged they had been libelled in a London Greenpeace factsheet, entitled "What's wrong with McDonald's? - Everything they don't want you to know"; the issues in dispute concerned the responsibility of McDonald's and the food industry/multinationals for; third world hunger; damage to the environment (tropical forests & recycling and waste); the deceptive promotion of unhealthy food and the links between diet and disease; exploitative advertising to children; cruelty to animals; low wages, poor working conditions and hostility to trade unions. Publication was also in issue. 

The Counterclaim related to press releases and leaflets published by the 2nd Plaintiff which accused the Defendants of lying to the public, both about the issues in the main action, and about their involvement in the campaign. 

6.    The case was heard by Judge alone. As with all defamation actions, no legal aid was available to the defence, and we were unrepresented throughout both the trial and the appeal.  We are both, and have both been at all times, of very low financial means (Ms Steel is a part-time bar worker paid approx. £65 per week, or at other times not in paid employment and instead in receipt of income support and Mr Morris is a full time single parent on income support and both of us have had no relevant previous legal experience before this case.

7.  The Judgment of Mr Justice Bell was 762 pages.  He ruled that the criticisms of exploitation of children with advertising, deceptive promotion of unhealthy food, cruelty to animals and low pay were justified, but that the meanings which he determined that the leaflet meant regarding third world hunger, damage to the environment (tropical forests & recycling and waste), diet and disease, poor working conditions and hostility to trade unions, had not been justified (although several underlying findings were made in the Defendants favour) and he ordered us to pay £60,000pounds damages to the Plaintiffs. Judgment was also made on somefundamental matters of libel law.  The Judgment of Mr Justice Bell is appended (appendix 1). 

8.      The Judge ruled in relation to the counterclaim that McDonald's had made false defamatory statements about us, but that they were protected in doing so by qualified privilege. 

9.  We appealed to the Court of Appeal against those parts of the Judgment which had been found against us, and over other matters of law. Our 'Notice of Appeal' is available on request if required.  There was no cross-appeal by the Plaintiffs/Respondents.  We produced skeleton arguments for a number of the issues, these are available on request if required.

10. The appeal began on 12th January 1999 and ran for 23 court days in Court 1 of the Court of Appeal, with the Appeal Judgment being given on 31st March 1999.   The Court of Appeal allowed our Appeal in part only (ruling that it was true to say that ‘if one eats enough McDonald's food, one's diet may well become high in fat etc., with the very real risk of heart disease.' and that it was fair comment to say that McDonald's employees worldwide do badly in terms of pay and conditions), and reduced the damages to £40,000.  The 301 page Judgement of the Court of Appeal is appended (appendix 2).

11.     Leave to appeal to the House of Lords was refused on 30th April 1999. The Court of Appeal stated that they accepted that some appeal points did raise questions of public importance, but said we should seek leave from the House of Lords.

12.     The Petitioners submit that leave should be granted, since a number of points of public importance arise from the Judgment of the Court of Appeal, as set out below. 
 

POINTS OF LAW INVOLVED IN APPEAL

13.     Was the Court of Appeal right in its determination that there were no restrictions on the ability of the First and/or Second Plaintiffs, as substantial, powerful and influential commercial undertakings to maintain an action in defamation ?

The Petitioners submit that this is a question of fundamental public importance, of whether it is in the public interest for such powerful corporations to have the right to sue members of the public over public interest issues.  The Court of Appeal recognised that this could be seen as ‘an argument of some substance' [CA p280C], although they rejected it. 

We submit that in a free and democratic society such corporations must always be open to unfettered scrutiny and criticism, particularly on issues of public interest. Corporations are often more powerful and less publicly accountable than government bodies and therefore the public's freedom of speech in criticising such Corporations should be even more robustly protected. 

Under English law, the right of corporations such as the Plaintiffs to maintain an action for defamation is not "clear and certain" as held by the trial judge [Justice Bell p.90] The law is developing in this area, as in recent cases removing this right to sue for governmental bodies, corporations controlled by governmental bodies and a corporation registered as a political party.  Since the law is uncertain and/or developing (see Derbyshire CC v Times Newspapers Ltd [1992] 1 QB 770; British Coal Corporation v NUM (Yorkshire Area), unreported, 28 June 1996; and Goldsmith v Bhoyrul, Times, 20 June 1997), the Court of Appeal should have had resort to the European Convention Human Rights and the case law of the European Court and Commission of Human Rights. 

Resort can be made to the Convention not only when the law is uncertain, but also when the common law is developing or where it is certain but incomplete (AG v Observer Ltd, AG v Times Newspapers Ltd [1992] 1 QB 109; Derbyshire CC v Times Newspapers Ltd [1992] 1 QB 770).  We therefore submit that it is clear that this is a matter which should properly be considered by the House of Lords.

14.     Was the Court of Appeal right in its determination that the First and/or Second Plaintiffs could maintain, or receive damages for, an action for defamation without proof of actual financial loss or special damage ?

The Petitioners submit that Plaintiffs should have an obligation to show actual damage, rather than presumed damage which is wholly speculative, and about which no evidence was heard.  It is of great public importance that freedom of speech is not chilled by the potential of large, unquantifiable and unforeseeable awards of damages being made against publishers, without  any burden on a Plaintiff to demonstrate actual damage. A company like McDonald's should not be able to take advantage of a rule introduced to safeguard the reputations of individuals who's reputation may be damaged without any corresponding actual financial loss. Just as a company must demonstrate that the injury suffered must be to its trading reputation, so we submit that injury must be demonstrated in financial terms. This submission draws on the recommendations of the Faulkes Ctte [Cmnd 5, 909, para 342]. The Plaintiffs/Respondents brought no evidence that they had suffered any financial loss as a result of publication by the defendants of the words complained of. 

15.     Is it in the public interest for a Plaintiff to be permitted to bring a libel action against a defendant when it has made an agreement with a third party to allow continued distribution to the public of substantially the same document? 

In May 1989 McDonald's made an agreement with Veggies Ltd, which allowed them to continue distributing the London Greenpeace anti McDonald's factsheet (subject of this action) [See CoA Judgment pp100A-C and 101A-B], with only minor changes to the ‘rainforest' section, and a change of no consequence to the heading of the ‘animals' section.  No other section was changed. Veggies were and are the main distributors of the London Greenpeace factsheet and continue mass distribution (supplying leaflets in bulk to other groups) of this leaflet to this very day.  The Petitioners submit that as such there was no proper legal basis for the libel action against them, and that it was an abuse of process which wasted both our time and court time, and as such is of public importance.

16.     Was the Court of Appeal right in its determination that the burden of proof remained unshiftingly on the Defendants to prove that the matters complained of were true; with particular reference to: 

(a)     our lack of resources, the unavailability of legal aid, and the severe restrictions this imposed on calling evidence and/or 

(b)     the ability of the parties to prove or disprove particular issues; and/or 

(c)     Article 10 of the European Convention of Human Rights; and/or 

(d)     the fact that we were not the authors of the matters complained of; and/or 

(e)     the inordinate delay between the matters complained of and the date of trial ?

The Petitioners submit that these are all questions relating to the standard of proof required which are all matters of concern to all defendants in a libel case, and even to all publishers of campaigning or investigative material (including those who merely distribute leaflets produced by organisations).  These include the question of whether a Defendant in a libel action should be required to prove in court scientific matters which have been reported elsewhere in scientific and health journals. 

There is a further question of whether it is right that a wealthy Plaintiff with documentation in its possession, should be allowed to sit back and force the Defendant to prove everything, particularly when the Defendants are not the authors and are merely accused of handing out or repeating other's words, and where the Defendants are impecunious.  The recent Guardian vs Aitken case shows the dangers of the entire burden of proof being on the Defendants, it being fortunate that at the last minute the Guardian was able to secure evidence which averted a miscarriage of justice. In all likelihood, a less wealthy Defendant would have lost that case.  The petitioners consider that much the same has happened in our case, where we were forced to prove all the issues McDonald's chose to sue over. We succeeded on a number of the issues (& several more ‘sub-issues'), but the burden was immense and led to a 314 day trial, huge costs, and risks.  This cannot be in the public interest as it acts as a deterrent to freedom of speech, and therefore is a question affecting the public at large. We submit that a fixed burden on the Defendants to prove the absolute truth of all matters complained of, including scientific matters, is a clear violation of Article 10 of the European Convention of Human Rights.

17.     Was the Court of Appeal right in its determination that there is no defence in defamation proceedings of "reasonable belief in the truth of the words complained of" ?

The Petitioners submit that protection of freedom of speech requires a defence of reasonable belief in order that people feel able to air views freely.  Currently many people (and the media) are deterred from making statements they believe to be true because of fear of the libel laws.  The Courts recognise in relation to governmental boides that the public interest is best served by open debate where people feel free to air what they believe [Times v. Derbyshire] and we submit this must be true in relation to large corporations which have extensive influence and effect on society.  To some extent the question of qualified privilege rests on whether it is reasonable to believe information given to you, as well as the question of whether it is right to pass that information on.  Therefore the ‘reasonable belief' is a question which does get considered by the Courts in certain circumstances and could be an approach adopted in determining whether a full trial on all the issues is necessary.  In the light of the recognition in European law of the importance of the right to impart and receive ideas, the petitioners submit that this is an important question to consider, particularly considering the growing power and influence of multinational corporations and the importance of the public in being able to challenge them where appropriate.

18.     Was the Court of Appeal right to determine that the principle of qualified privilege did not provide the Defendants with a defence in these proceedings ?

The Court of Appeal found that campaign groups could be amongst those able to claim qualified privilege in respect of publications they produce [CA p37-38], but found that in the case of the factsheet which was the subject of this libel action, it ‘lacked balance' and ‘made scant reference to authoritative sources'[CA p39D-F].  In addition to the argument above [para 17], the Petitioners submit that it is unclear what the Court of Appeal intended in its reference to a requirement for balance.  To what extent should balance be a requirement, for example if the World Health Organisation states that diet is causally linked to cancer, does anyone repeating this have to ‘balance' it with the views of scientists who dispute that there is any such link.  Such a requirement has serious implications for freedom of speech, and is of particular concern in light of the fact that there is no requirement for balance in advertising and promotional material put out by corporations.  It should be noted that the trial Judge found McDonald's advertising and promotional material to be deceptive.  In fact campaigning material generally is, and should be viewed as, a counterbalance to corporate advertising.

Further, the Petitioners submit that it is unclear what the Court of Appeal intended in its reference to a requirement for 'authoritative sources', and whether these should have been contained in the text complained of or merely available in justification if required (as provided in the defendants' skeleton arguments).  Questions of qualified privilege are currently before the House of Lords and Privy Council and we submit that we should be allowed the opportunity to develop the relevant principles in relation to the special facts of our case, which have implications for campaigning groups in this country.

The Court of Appeal erred in failing to look at the discrete sections of the factsheet complained of in turn to identify whether authoritative sources were indeed put before the court which might fulfil the criteria to qualify for the qualified privilege defence. (For example the appellants submitted in writing to the Court of Appeal 11 authoritative and public references/sources for McDonald's responsibility for rainforest destruction, all of which predate the service of the writs in 1990, and most predate the earliest date of publication of the words complained of. This 2 page document can be provided on request). The Court of Appeal judgement does not, or does not adequately, set out the standard, status, form of criteria to be met, or how the appellants attempted or should attempt to meet such criteria. It therefore, we submit, falls to the House of Lords to clarify this wholly unclear and unparticularised set of hurdles and parameters which go to the heart of current and developing defamation laws and the concerns of all publishers and indeed legal advisors.

19.     Was the Court of Appeal right to determine that a defence of qualified privilege was not available for a response to the Plaintiffs' attack on vulnerable groups (children, non-unionised workers, animals etc) unable to effectively defend themselves?

The Petitioners submit that a defence of qualified privilege should be available in respect of publications, such as the London Greenpeace factsheet, which are a reasonable and legitimate response to an actual or perceived attack on the rights of others, in particular by the effects of powerful organisations (like the Respondents) on vulnerable sections of society who generally lack the means to adequately defend themselves - eg in this case children, young workers, animals and the environment, particularly where the public have an interest and duty to hear such a response. In the alternative, the qualified privilege criteria as outlined by the Reynolds case should more readily be satisfied in the case of documents with the character of seeking to protect the interests of vulnerable sections of society as outlined above. 

20.      Should the Court of Appeal have acceded to the Defendants' submission that these proceedings should have been stayed as an abuse of process and/or as oppressive, and/or as unfair, with regard to the particular and cumulative effect of a range of procedural, legal and other specific burdens upon them due to the circumstances and particularities of the case?

The Petitioners submit that the following matters individually and/or cumulatively amount to an unnacceptable burden on defendants:

a.     the denial to the defendants of legal aid;  The denial of legal aid to the Defendants in a case of such nature and public importance resulted in the impossibility of the Defendants being able to adequately and fully prepare, organise and administrate the paperwork and other legal work from their homes and in their spare time, especially in the light of the case length, the extent of documentation, the scope of the issues, the international territory of relevance to be covered and the complex legal and factual research needed; In addition the inconsistent approach to witness statements due to the effects of the new 'practice direction' ( limiting evidence in chief) being introduced halfway through the trial, affected the defendants unfairly especially in the light of the impossibility of their being able to provide clerks etc to facilitate their witnesses in the making further statements.  The impossibility of the defendants being able to effectively challenge or even challenge at all the Plaintiffs' counsel's approach and interpretation of the law throughout the trial was unfair, bearing in mind his inevitable commitment to the interests of his clients. This is particularly noteworthy (with no disrespect intended to him) in the light of Mr Justice Bell's acknowledged inexperience in this area of law. 

b.     the denial of their right to a jury trial; The defendants suffered from the absence of a jury to decide on meaning of the words complained of, the allegations of malice (in both the Claim and the Counterclaim), to evaluate the facts and right to fair comment based on their own experience and common sense, and to intervene should they consider any injustice or oppression to be resulting during the trial or at the end. However efficient, fair minded and worldly wise a judge may be he cannot displace the advantage, the value and the right of defendants to be tried by their peers.  In any event, we submit that the unfairness is compounded in the light of the Court of Appeal's view that a scientific enquiry into the nature of the relationship between diet and disease (mainly cancer) was unnecessary, and that this was the reason given justifying the removal (pre-trial) of the defendants' right to a trial by jury.

c.     the lack of equality of arms in preparation, research (including legal research) and advocacy;  this is is particularly relevant in the context of an adversarial legal system,  and therefore compounded the impossibility of a fair trial. 

 d.      the oppression of such an (unnecessarily) long, stressful, wide-ranging and detailed case, including an unnecessarily complex scientific enquiry; The Court of Appeal stated the case length was unnecessary - for example the 100 days of employment testimony [CoA p210A] and the 60+ days devoted to nutrition ie. mainly the unnecessary scientific enquiry of the causal relationship between diet and cancer. As well as relevant aforementioned points, the case was personally oppressive to each of the defendants who had to endure the relentless pressure and stress of such a long, detailed, high profile, stressful and continuous (unbroken) action unaided to any significant degree. The case dominated our time for at least 4 years, and the paperwork dominated our homes - our personal lives suffered unacceptably. Mr Morris is a single parent with sole responsibility for a now 10 year old child (age 1 when the writs were served). Ms Steel suffered from stress related eczema and exhaustion. Such a trial is an abuse of the principle of a fair and equal hearing. In particular the trial Judge was wrong to fail to take into full account domestic circumstances and grant adequate adjournments.

e.     the denial of equal access during half of the case to official transcripts;  This inevitably resulted in an unfair advantage to the Plaintiffs regarding preparations for cross examination, ability to take notes and therefore preparation for closing submissions, dealing with the myriad points of law that arose, consulting with our witnesses and so on. 

 f.     the delay in the Plaintiffs' bringing of the action; 

g.     the Plaintiffs' agreement with Veggies (see Petition para 15); 

h.     the wide range of justified and/or fair and/or non-defamatory and/or 'everyday' criticisms contained in the words complained of; which was the main cause for the oppressive and inconvenient length and scope of this case.  The extensive legal attack by the Plaintiffs on almost the entirety of the issues raised in the Factsheet shows the clear political nature of their legal strategy. Their strategy can only have been that they were seeking to use the court case as a 'show trial' against people they thought would be unable to defend themselves, and having successfully denied the defendants a jury trial were aiming for a quick judgement which would be publicly used to 'vindicate' their Corporate image ie as just another tool for their global publicity directed at the public. This is clearly an abuse of the legal process and oppressive to the defendants. 

i.     the fact that the defendants were not the authors of the words complained of;

j.     the fact that the Plaintiffs, through their servants or agents, themselves published the entire words complained of; 

k.     the ability and practice of the Plaintiffs to more than adequately respond to the criticisms made of their business without resort to the courts; 

21.     Should the Court of Appeal have acceded to the Defendants' submission that these proceedings should have been stayed as an abuse of process with regard to the fact that the servants or agents of the First and/or Second Plaintiffs remained in London Greenpeace after the service of the writ in these proceedings ? 

The Court of Appeal indicated concern at the fact that Private investigators remained in London Greenpeace after the service of the writ in these proceedings [CA p61A-B], but stated that in this case no advantage was gained by the Plaintiffs as a result.  The Petitioners submit that it was not possible for the Court of Appeal to safely reach such a conclusion since the Plaintiffs had refused to disclose the reports of meetings after the writs, and further that given the intimate relationship which took place between one of the private investigators and a person involved with London Greenpeace there were substantial grounds for finding that an abuse of process had occurred. 

22.     Should the First and Second Plaintiff have been required to disclose all of the reports relating to their agents involvement with London Greenpeace ? 

The Petitioners submit that there is little case law regarding the use of private investigators and to what extent the party making use of the tactic of infiltration in particular should be able to do so without full disclosure which enables the full picture to be seen and relevant matters to be drawn to the court's attention by all parties in the action. The case law of the European Court of Human Rights makes it clear that adversarial proceedings require full disclosure of all material which is relevant to the action.  The Plaintiffs in this case refused to disclose a very large number of the reports they obtained of London Greenpeace meetings, and blanked out large parts of the notes of meetings which were disclosed.  This refusal to disclose much of the information gathered put the Defendants at a serious disadvantage, particularly in the light of the Plaintiffs claim, which was upheld by the Judge, that the anti McDonald's campaign was a major part of the group's activities.

23.     Does proof that a private investigator, hired for the purposes of obtaining evidence, has deliberately fabricated evidence, mean that the evidence of that witness cannot be used to support a finding against the defendants? 

The evidence of the Plaintiffs' witness Allan Claire, a private investigator, hired by McDonald's to infiltrate London Greenpeace, was challenged in a large number of places by the Defendants as being downright fabrication.  In one particular instance, despite the distance in time, the Defendants were able to prove to the satisfaction of the trial Judge that his evidence was deliberately false.  Despite this, other parts of his evidence were still accepted as evidence against the Defendants, and in one respect (Mr Morris's alleged responsibility for production) it was crucial. The Petitioners submit that given the difficulties in challenging evidence gathered in secret and not notified to the Defence until years after the event, the proof that a private investigator has fabricated evidence should mean that none of the evidence of that investigator should be able to be used against defendants.   This situation is analogous to criminal proceedings in which a conviction, based on the evidence of a police officer who has been proven to have fabricated evidence, could not be safe.  The consequences of a finding of liability for publication of a libel can be far more serious (certainly in financial terms) than a great many criminal offences.

24.     Was the Court of Appeal right in its determination that the Defendants published the matters complained of; and do the findings made contravene or constitute a deterrent to the right of freedom of association ?

Essentially, with the exception of one instance of alleged publication by the First Petitioner on 16th October 1989, the findings made by the trial Judge and upheld by the Court of Appeal of publication by the Defendants are made on the basis of alleged involvement in a group and/or campaign. This is an issue of importance to a great many people who from time to time may get involved in campaigns, and whether they should then become liable for leaflets written by others, when they have not taken any active, practical steps to assist publication, or not even expressly assented to publication. If the public were aware that this was a risk they took by getting involved they may well decide not to run that risk.  Therefore the findings made in this case and upheld by the Court of Appeal must be a deterrent to the right of freedom of association and contrary to Article 11 of the European Convention on Human Rights.

Further the findings made by the trial Judge, that the Defendants were involved in the anti-McDonald's campaign at the relevant time, rested on a number of instances where the burden of proof was reversed, the Judge stating that the defendants must have been present at events, because they hadn't given any good reason why they wouldn't have participated. Such findings contravene the right to a fair trial.

25.     In relation to publication, was the evidence of distribution of the leaflet complained about the "best evidence" and was it sufficient to prove the First and/or Second Plaintiffs' case ? 

This is a question affecting all potential defendants. If a party says that at one point it had evidence, but that it now cannot produce it, and instead intends to rely on ‘best evidence', to what extent should that be permitted without a reasonable explanation of how the evidence came to be lost.  In a case involving identification of documents with similar appearance or description, shouldn't their preservation as exhibits be a necessary requirement in order to prevent errors of identification being made.  This must particularly apply where there is a delay in bringing proceedings, otherwise there is no incentive for a plaintiff to preserve evidence, and there are little or no safeguard against the doctoring of evidence.  These safeguards are necessary given that for a party which has not anticipated legal proceedings, the delay may mean it is difficult or even impossible for them to effectively challenge evidence given. 

26.      What was the appropriate standard of proof in relation to the issue of publication arising in these proceedings ?

The Petitioners submit that where there is a risk of severe consequences, e.g. liability for tens of thousands of pounds damages, and particularly in relation to a libel action where no financial loss has been shown, there should be protection for the public by ensuring a strict standard of proof, so that the court is sure beyond all reasonable doubt that the Defendants were responsible, before making them liable for such large sums of money. The consequences of a being found liable for a libel are often much greater than the consequences of a criminal conviction, yet the standard of proof required is much lower.

27.     In relation to publication, was the approach adopted by the trial judge and/or Court of Appeal right in relation to: 

(a)     the extent of publication in terms of the quantities of leaflets published for which the Defendants were held responsible; and/or 
(b)     the geographical extent of publication 
(c)     the reliance on the 'Haringey Affidavit' ? 

Regarding (a) the Petitioners question to what extent a trial Judge can go outside the evidence given by Defence witnesses as to quantities of leaflets published, when the Plaintiffs have not produced any evidence of the extent of publication, nor how the Defendants were responsible for many of the claimed instances. 

Regarding (b), the trial judge was wrong to consider publication elsewhere in the world when the Plaintiffs had stated that they did not complain of such publication in this action, and it was in any event outside the jurisdiction of the court. 

Regarding (c), an affidavit (the 'Haringey' affidavit) was drawn up by a solicitor for the 2nd Petitioner in other proceedings, which contained a clear error in a two sentence summary of the current proceedings [CA pp80-83].  The error was not noticed by the 2nd Petitioner at the time he signed it.   By omission of the word 'alleged', the sentence was said to be an 'admission' of both defendants' responsibility for production of the words complained of in the current case (although it was later accepted by the Plaintiffs and the Trial Judge that it could not be true of the 1st Petitioner).  The solicitor confirmed in writing that the 2nd petitioner had asked her to correct the affidavit (some months before it came to the attention of the Respondents solicitors in this case) but that she had not done so because the error was not material to the proceedings for which the affidavit was sworn and hence she could not justify an application for further legal aid to make the amendment. 

The Petitioners submit that in these circumstances the affidavit should not have been admissible in evidence, or should not have carried any weight as evidence, or that the Trial Judge had a duty to warn the unrepresented 2nd Petitioner that he would not accept the evidence contained in the solicitor's letters unless she attended court.   In light of the pre-trial rulings made at the Court of Appeal [by Neill LJ on 25.3.94, 'McDonald's & Anr vs Steel & Anr', first sentence, and at the European Human Rights Commission - 'S and M v United Kingdom, May 1993' first sentence], which both contained exactly the same error, the petitioners submit that these rulings constitute either prejudice of the defence case (having been published before the 'Haringey' affidavit), or in the alternative serve to neutralise the alleged 'admission' as mere shorthand. These questions are a matter of public importance in the light of current cuts in legal aid and pressure on solicitors to restrict their applications and hence their ability to serve their clients effectively.

28.      Did the publication carried out or encouraged by the agents of the First and/or Second Plaintiffs amount to consent to the publication of the matters complained of? 

- During the course of the proceedings some of the private investigators stated that they had distributed the leaflet complained of.  Further, most of the investigators testified to regularly attending London Greenpeace meetings and participating in discussions, (actions which in the Defendants case the trial Judge ruled made them liable for publication).         - The Petitioners submit that the law is clear that what a person does through an agent they do themselves, and that active participation in a publication constitutes consent. Therefore the Court of Appeal wrongly took into consideration or gave overarching weight to the motive of the Plaintiffs and their agents [CA pp85-88] and thereby have created a new legal precedent, against the weight of all the authorities we put before the court (none of which are cited in the judgment). It is a precedent which we now seek leave to challenge. Consent is an absolute defence and hence acts as a filter and discouragement for unnecessary libel actions, and also a restraint on extensive infiltration of opposing parties - hence it is a matter of great public interest. 

29.     Was the trial judge and/or Court of Appeal right in determining that the First and/or Second Plaintiffs were not bound by the admissions (against their interest) made by their servants or agents before and/or during the course of the trial?

The Petitioners submit that, in defamation cases particularly, unassailable weight should be given to admissions against interest made by Plaintiff's representatives, especially those of management grade or above, in the witness box, or in official and public company documentation. This would remove the anomaly where the Plaintiff can say one thing publicly, but sue a defendant for effectively saying the same thing. This would also avoid frivolous defamation claims, or unnecessarily lengthy testimony/proceedings. 

By way of example, in the present case, the 2 issues involving the longest testimony (a total of approx 160 days) were Nutrition (mainly whether diet is causally related to heart disease and cancer) and Employment (mainly whether the company is actively anti-union and provides poor pay and conditions). 

In relation to Nutrition, the 2nd Plaintiff had published a document, 'Good Food, Nutrition & McDonald's', for health professionals which accepted that a high fat, high salt, low fibre diet is causally linked to heart disease and cancer (amongst other issues), a view strongly endorsed additionally by the second Plaintiff's nutritional advisor and expert witness during his testimony in the witness box, yet they then forced the Defendants to prove such a casual relationship in court, and indeed the scientific argument over this issue was the Plaintiffs main basis for applying for a non-jury trial. The Defendants succeeded in relation to heart disease, but not in relation to cancer, in the view of the Court of Appeal.  However, the Court of Appeal stated that they had "considerable sympathy" with the defendants submissions that the link between diet & disease referred to in the leaflet complained of was accepted in literature published by McDonald's and that evidence on this issue was unnecessary [CA p164D]. 

In relation to Employment,  McDonald's UK Vice President and Head of Personnel admitted in the witness box that employees 'would not be allowed to carry out any overt Union activity on McDonald's premises' and that 'to inform the Union about conditions inside the stores' would be a breach of the employee's contract, 'gross misconduct' and as such a 'summary sackable offence'. Yet the defence failed as on the weight of the evidence it was not found that McDonald's had a policy of preventing unionisation by getting rid of pro-Union workers (a point which is actually less defamatory than the admission by the Head of Personnel as it only applies to workers who actually carried out Union activity whilst attempting to unionise, whereas the admission accepts that every employee is banned in advance, under contract, from exercising their legal right to engage in any Union activity at all, even that protected by trade union discrimination legislation).

The Petitioners submit that by giving full weight to such admissions, court time (and that of the Defendants) would be saved, which must surely be in the public interest. 

30.     Was the approach of the trial judge and/or the Court of Appeal to the meanings of the matters complained of right; in particular was he wrong  to re-interpret the otherwise clear meanings of the text by reference to the cartoons, graphics, headings, context and banner headlines in the leaflet? 

The Petitioners submit that the Court of Appeal was right to state [CA p227D, that 'the habit of defamation practitioners of translating words in allegedly defamatory publications whose meaning is perfectly clear into different words is not always necessary or helpful'.   The Court of Appeal found that the trial judge had adopted the wrong approach regarding his interpretation of the meanings of the nutrition and employment sections of the leaflet complained of, but they then failed to look at whether this had happened for each of the other meanings in issue in this case.  For example the words 'Don't be fooled by McDonald's saying they use recycled paper: only a tiny per cent of it is', were translated to 'McDonald's is lying when it claims to use recycled paper.'.  This is a question of public importance since Defendants may be able to justify what the publication says, but not the meaning determined by a trial judge, and as such this is clearly an unnecessary interference with the right to freedom of expression.

The Petitioners further submit that satire and cartoons are an important element of free speech and that there is a tradition of political expression through cartoons which should be protected.  Further the Defendants question to what extent a headline can or should alter the meaning of a portion of text which might otherwise bear an innocent or justified meaning.  Given the tendency (and even sometimes necessity) of newspapers and other publishers to write snappy, satirical, ironic, witty or simplified headlines to draw interest to articles, if the meaning is not ultimately obtained from the text (unless it is diametrically opposed to the heading) does this not detract from people's ability to express and draw attention to issues. (Further points on specific meanings, see 32, 33, 35) 

31.     Was the trial judge and/or the Court of Appeal right to find that all the matters in issue in the leaflet related specifically to the First and/or Second Plaintiffs? 

- If a leaflet is largely about a high profile company but also highlights industry wide or general issues, should all matters mentioned in the leaflet be assumed to be specifically about that company or its responsibility, or that it must be worse than other companies.   The petitioners submit that to make such an assumption constitutues an unnecessary interference with freedom of expression, by requiring defendants to prove something which was not stated.  For example in the leaflet complained of, in a box which doesn't mention McDonald's is it right that we had to show McDonald's food specifically was worse than others, and/or exposed their customers to 'a serious risk of food poisoning', when the processes used are, as criticised, merely standard practice and there is genuine and widespread concern about harmful effects on human health from the use of pesticides and modern agricultural practices (concerns such as E Coli, BSE and cancer from pesticide residues).  Another example is the section of the words complained of which identifies the international cash crop economy as being responsible for unfair international trading patterns and therefore hunger in the third world. McDonald's is stated as being involved in this economic imperialism, yet the defendants were unfairly expected to demonstrate that McDonald's itself by its actions in particular had caused starvation.

32.     Was the trial judge and/or the Court of Appeal right to attach significance to the difference between the level of the First and/or Second Plaintiffs' packaging found to be made from recycled materials and the level alleged in the leaflet ? 

The leaflet stated that only a tiny percentage of McDonald's packaging was made from recycled paper, the trial judge found that it was a small but significant percentage.  Would the difference make any material difference to the public's view of the company?  The Petitioners submit that the finding made by the Judge constitutes an interference with and deterrent to the right to freedom of expression, in that no leeway is given for difference of opinion or minor error.  It is an interference if people have to consider matters such as exactly the meaning of tiny and small (which do mean different things to different people), and what impression those words would make on others, and water down their beliefs just to be on the safe side.

33.      Was the Court of Appeal right to determine that it could not reopen any issue relating to the meanings of the nutrition section of the leaflet ? 

During the course of the main trial the Judge ruled on the meaning of the nutrition section of the leaflet.  The Defendants appealed against this decision at the time, but due to the pressure of time in the main action and being unable to obtain assistance for the appeal application, they withdrew most of the grounds of appeal, believing that these could be raised following the conclusion of the main trial (if necessary).  They merely asked the Court of Appeal at that stage to address the question of whether the meaning determined by the Judge was more serious than that pleaded by the Plaintiffs.  The Court of Appeal found that it was not and affirmed the meaning, without any real argument as to what the proper meaning should be. The Court of Appeal in the full appeal (LJ Pill, May & Keane) determined that they could not interfere with the previous decision, even though both they and the Plaintiffs were of the view that it was not clear what was meant by the trial Judge's meaning.  The Petitioners submit that it is not in the interests of justice for a party to lose a libel action on a technicality due to their inexperience in libel law and court procedure, when the Court of Appeal is clearly of the view that a different meaning should have been reached.  The House of Lords is not so bound, and the Petitioners submit that given the view expressed by the Court of Appeal and the Plaintiffs, as well as us, the meaning determined by the trial judge and upheld by the earlier Court of Appeal decision should be overturned.

34.     Were the meanings attributed by the trial judge to the nutrition section of the leaflet right? 

The Court of Appeal indicated that it sympathised with the Appellants view of the natural and ordinary meaning of this part of the leaflet [CA p188D & 164D], but that it felt bound by a previous Court of Appeal decision. The House of Lords is not so bound and the Petitioners submit that the meaning set out by the Court of Appeal 'that there is a respectable (not cranky) body of medical opinion which links a junk food diet with a risk of cancer and heart disease', is in fact the natural and ordinary meaning of this section of the leaflet.

35.   Was the trial Judge's error in conducting a scientific enquiry on links between diet and disease effectively a mis-trial on the issue? 

- The Petitioners submit that the Court of Appeal was correct to indicate [CoA p188D] that the trial judge was wrong to conduct a scientific enquiry in the way that he did. There was no need, and indeed it was undesirable, for the court to attempt to consider, analyse, evaluate in detail the full range of global scientific studies and opinion on this matter when it had access, for example, to a World Health Organisation report compiled and published for this very purpose after just such an (exhaustive) exercise at the most relevant time (late 1980s), (this is even more so when Plaintiffs' expert witnesses accepted this as a 'State of the art' report).  It must therefore follow, we submit, that the defendants were put to an unnecessary and onerous burden, and that the Trial Judge's conclusions are unsafe. It is, we submit, not in the public interest that the courts conduct lengthy scientific enquiries for the purposes of a libel trial, particularly where eminent scientific opinion is readily at hand.  The ruling in Hertel -v- Switzerland, ECHR, 25.08.98 - (unsuccessful attempt to restrain publication with an image of death, which stated that food prepared in microwave ovens is a danger to health and could lead to the beginning of a carcinogenic process) supports our the view that to censor part of a debate bearing on public health and similar issues (even if the opinion expressed is a minority one and may appear devoid of merit) is unacceptable in the context of Article 10 ECHR.  The Petitioners submit that it is in the public interest for ruling to be made which protects the right of members of the public to repeat the views of any scientific body without the fear that they may be forced to prove those views in a libel case.  In our case the views expressed, in the words complained of, are in keeping with the views of many eminent scientists, and recognized by the Court of Appeal, e.g. 'the link generally between diet and cancer is well established' [CA p190E].

36.    Were the meanings attributed by the trial judge, and upheld by the court of appeal, to the food safety section of the leaflet right ? 

- Given that the central part of text which was the subject of the food safety issue in the trial was viewed by the Judge as 'certainly capable of bearing the inoffensive meaning pleaded by the Defendants' [JB p470], when taken literally, the Petitioners submit that to find, and require the Defendants to prove, a much more serious defamatory meaning, constitutes an unnecessary interference with freedom of speech.  Even taking the heading 'What's your poison' (clearly a play on a well used phrase, not usually taken literally) and the words on the previous page into account i.e. 'at best mediocre, at worst poisonous', should not have led to a requirement for the Defendants to prove that there was a serious risk of getting food poisoning from eating McDonald's food. 

Further the Petitioners submit that the wrong approach was adopted by the trial Judge, in particular ruling that the relevant section of the words complained of refers to McDonald's specifically or separately from the meat industry (and modern agricultural practices) in general.  This approach is certain to encourage a chilling effect on freedom of speech on issues of public importance (such as food safety concerns). Generalities are often raised during media focus on specific individuals or organisations, and such journalistic techniques should not be threatened by what are, we submit, legalistic approaches in interpreting meanings of words complained of.

37.  Was the court of appeal right to uphold the trial judge's finding that it was not established that the Plaintiffs sold meat products which exposed their customers to a serious risk of food poisoning etc? 

The Petitioners submit that, without prejudice to the previous point, the Judgment of Mr Justice Bell clearly establishes justification of the meaning found by the trial Judge. The Court of Appeal rightly found [CA p168F] that 'the proposition 'arsenic is very poisonous' is not rendered untrue because very few people take arsenic', and it is submitted that this applies with equal force to the food safety issue where it was clearly found by the trial judge that bacterial contamination of McDonald's raw meat products is widespread [eg. JB p503] and that the risk of undercooking 'is endemic in the fast food system' [JB p511].  Given the difficulties of proving which meal a particular bout of food poisoning is attributable to [see also JB p513], these findings should have been sufficient to justify the meaning as determined, particularly given the additional finding that 'the defendants were able to establish some incidents of food poisoning attributable to eating McDonald's food.' [JB p476]

38.   Was the Court of Appeal right to uphold the trial judge's findings that: 

(a)     a significant distinction could be drawn between an allegation that the First and/or Second Plaintiff were "anti-union" and an allegation that they had a policy of preventing unionisation by getting rid of pro-union workers; and/or 

(b)     the findings that the First and/or Second Plaintiff were strongly antipathetic to the idea of unionisation of crew in their restaurants did not meet the allegation that they had a policy of preventing unionisation by getting rid of pro-union workers; and/or 

(c)     there was not a policy of preventing unionisation by getting rid of pro-union workers, in the light of the admission by the Head of Personnel that the employee contract effectively meant that 'employees would not be allowed to carry out any overt union activity on McDonald's premises'?

The Petitioners question whether it is right that an allegation of being anti-union is not defamatory, if having a policy of preventing unionisation is. 

Further Justice Bell having found that McDonald's were strongly antipathetic to the idea of unionisation of crew in their restaurants [JB p695 ] should have found that the public would not draw any significant difference (in their view of the company) between that and a policy of preventing unionisation by getting rid of pro-union workers, particularly taken with the finding that there have been instances where crew have been victimised or lost their jobs for union activity [JB p695]. 

The Petitioners further submit that both the Trial Judge and the Court of Appeal gave inadequate weight to the admission (see (c) above, and transcript Day 120 p5 line 30) of McDonald's UK Head of Personnel, indeed it is not dealt with in either Judgement, and that it is a severe interference with freedom of speech if despite an admission that no overt union activity would be allowed on McDonald's premises (and employees could be sacked for carrying out such activity), people are not entitled to say that the company has a policy of preventing unionisation by getting rid of pro union workers.

The Petitioners further submit that the Court of Appeal failed (as did Bell J) to rule on the issue of the appellants' written submission that McDonald's UK employee contract imposes unlawful discrimination against the trade union rights of all its workforce. It is hard to imagine, we submit, a more concrete example of a policy for getting rid pro-Union workers than a blanket prescription and ban on all forms of union activity with the threat of discipline and dismissal, enshrined in the contract of employment and backed up by clear testimony on oath by the Head of Personnel. 

39.     In relation to the counter-claim, was the Court of Appeal right to uphold the trial judge's findings that: 

(a)     the documents published by the Second Plaintiff were a response to an attack made upon it by the Defendants; and/or 

(b)     the documents published by the Second Plaintiff attracted qualified privilege ?

The Trial Judge found that McDonald's had published false defamatory statements about the defendants, but accepted the company's claim that these had been published as a legitimate response to criticism made by the defendants and others.  The Petitioners submit that the documents complained of were not a 'proportionate response' to any 'attack' made by them, and were merely part of a wider PR strategy of the company.  It is particularly significant that the Second Plaintiff unnecessarily chose to make widespread public statements (including false material) out of court on the eve of the start of the trial when it would have a full opportunity to publicly rebut the allegations made. 

We submit that this is a question of public importance in relation to the implications for all parties to high profile court cases, who may be asked for their opinions of the case by the media.  Does the fact that one party criticises the other give a carte blanche to the other party to say what they like without making any checks as to the accuracy of what they are saying.  The Petitioners cannot find any previous cases of qualified privilege in these circumstances, and submit that there are important questions for the Courts to look at.  We submit that either both parties should be protected or none.   Is it realistic to say that a multi billion dollar corporation needs the protection of qualified privilege against two individuals?  Does such a company not have the resources and budget to check their facts and put their views accurately?  Further the petitioners question why a member of the public defending a case should run the risk of a corporate attack protected by qualified privilege when the public are not protected by qualified privilege in their criticisms of a company's practices, which may be harming them or others.  The protection of a major corporation in this way whilst denying any such protection to members of the public gives the impression of treating the interests of ordinary people as second rate to those of powerful corporations.

40.  Did the Court of Appeal fail to properly consider the detailed allegations of discrimination in favour of the Plaintiffs' case made against the trial judge. 

The Petitioners submitted detailed written submissions regarding the Trial Judge's handling of the evidence in the trial, and the difference in approach adopted by him in assessing the evidence for the defence as compared to that for the Plaintiffs. The Court of Appeal did not deal with the majority of these submissions in their judgment, instead stating that it was instructive overall to compare the trial Judge's evaluation of the evidence of Allan Clare (private investigator for the Plaintiffs) and Mr Beech (former McDonald's employee, witness for Defence).  The Petitioners submit firstly that it is not appropriate to compare someone (Mr Beech) who in order to preserve their later job prospects doesn't say how much they disliked working for a company, and who makes a minor error in a witness statement prepared without any legal experience or assistance, with someone who deliberately concocts evidence for the purpose of a court case (Mr Clare) and has extensive legal experience and his statement prepared with the assistance of solicitors.  The petitioners also submit that the failure to deal with the detailed allegations made is a matter of public concern.

41.  Were the damages awarded by the trial judge as amended and/or upheld by the Court of Appeal too high, or justified at all, having regard to (inter alia): 

(a)     the fact that neither the First nor the Second Plaintiffs proved any financial loss; 

(b)     the means and extent of publication; and/or 

(c)     the fact that the Veggies Ltd leaflet continued to be published with the Plaintiffs' consent; and/or 

(d)     the findings of fact against the Plaintiffs by the trial judge and Court of Appeal ?

The Petitioners submit that separate damages for each plaintiff cannot be justified in light of the admission by the Plaintiffs during the Court of Appeal hearing that the first Plaintiff's loss could only be as result of loss of trade to the 2nd Plaintiff.  We further submit it is disproportionate to order defendants to pay thousands of pounds damages to a corporation which has no feelings, when the corporation has not shown any financial loss as a result of the criticisms made, and when the publication was only by way of a leaflet distributed to a limited number of people. Further it is not appropriate for any damages to be awarded to a company which has made an agreement to allow continued distribution of essentially the same material, by another party.

Further we submit that it cannot be right for a plaintiff to be awarded damages after serious adverse findings are made against it, after lengthy examination of evidence, that it exploits children, deceptively promotes food as nutritious etc.  Does such an award of tens of thousands of pounds in these circumstances not bring the legal system into disrepute in the eyes of the public, when no sanctions have been imposed on the company over the adverse findings?   These are questions of public importance in relation to how much damage can be caused to a reputation by findings.  We submit that a point is reached where no further damage done by allegations not proved, particularly in the light of findings of deliberate deception, even if they are not specifically in issue in the publication concerned.

We further submit that the Plaintiffs' reputation is largely an artificial construct, based as it is on a huge marketing spend, which in fundamental respects has been found in this case to have been based on unethical and deceptive marketing strategies.  Hence any consideration of actual pecunary damage to the company that it may demonstrate should be mitigated by a consideration of the implication of the findings made in this case generally. 

42.   Was section 5 of the Defamation Act 1952 correctly applied by the trial judge and Court of Appeal ? 

The Petitioners submit  that the highly damaging findings of fact made by the trial judge and Court of Appeal are findings against the Plaintiffs' global core business practices (all matters of great public concern in the UK) viz: exploitation of children; deceptive promotion of their food as 'nutritious'; their food being high in fat and salt and low in fibre; that their food can contribute to a very real risk of heart disease (encouraged by the Plaintiff's false nutritional advertising, as ruled by Bell J); paying such low wages as to depress wages in the UK catering industry; culpable responsibility for cruelty to animals; and the supporting facts for the decision that it is fair comment to say that their workers worldwide do badly in terms of pay and conditions.  In addition, the 'sub-findings' of Bell J, on the issues not fully justified by the defendants, are so substantial as to neutralise the findings that were not found in their favour.

Further the Plaintiffs have been found by the trial Judge to have committed a large number and wide range of deceptive, and furthermore deliberately deceptive and sometimes illegal acts (including deceptive advertising, breaches of employment law, breaches of animal welfare laws and government guidelines, their deliberate misleading of MPs and others previously threatened with libel writs), which are individually and/or cumulatively of such a serious nature that their reputation could not suffer as a result of any of the matters which the court found had not been justified by the defendants

43.   Was the procedure adopted in the Court of Appeal fair, particularly in light of: 

(a)     The fact that the Appellants were unrepresented, without legal aid and without adequate legal resources. 

(b)     The lack of equality of arms in preparation, legal research and advocacy 

(c)     The demands made of the Appellants before and during the appeal, including the obligations imposed on the Appellants to provide full written submissions in contravention of practice directions of Sir Thomas Bingham (26th July 1995) as restated by Lord Woolf in November 1998 regarding Skeleton Arguments and litigants in person. 

(d)     The fact that one week before the Appeal commenced, the Respondents served 1,600 pages of authorities which, without legal representation and/or resources, the Appellants were not able to read and respond to adequately or at all. 

(e)     The burden the Court of Appeal imposed on the Appellants to prove all aspects of their case, including non-publication of the matters complained of, and the limited time afforded to them for this; 

(f)     the high level of proof imposed on the Appellants to prove their contentions ? 

(g)     the oppressiveness of such a long, stressful, wide-ranging, detailed and complex Appeal;

The Petitioners submit that given the increasing cutbacks in legal aid and the increasing numbers of litigants in person, this is an appropriate opportunity to look at how litigants in person can present their appeal in order that a full and fair hearing of the appeal points occurs and what provisions need to be in force in order to ensure compliance with Article 6 of ECHR (right to a fair trial) given the difficulties faced by litigants in person, particularly in relation to administration, written arguments and knowledge & understanding of legal precedent.  We further submit that these are topical questions which need to be addressed given the new procedural and interlocutory developments (such as obligations for written submissions, and the intervention-management of cases by the tribunal). 
 

YOUR PETITIONERS SUBMIT that leave to appeal to your Lordships' House should be granted for the following among other   REASONS

Due to the number of Points Of Law in this petition, we have found it more convenient to include the explanatory reasons beneath each point, rather than bulked together in this section. We hope that any procedural or grammatical variations from usual practice in the drafting of this document will not have presented any obstacle to an appreciation of the points we are trying to make to the best of our ability as unrepresented and untrained litigants in person.

There are, however a number of themes and issues which run like a thread through the petition which, we submit, underline and emphasise the high public interest in the matters as outlined.

Defamation law and procedures have been recently, and are currently, being closely scrutinised and in some areas developed. In addition the articles of the European Convention on Human Rights and ECHR case law are now highly relevant. 

There are so many aspects of this case which seem to be of an unprecedented nature or scale and could properly benefit from scrutiny by a higher court.

We submit that the defamation laws and procedures, and their application in this case up to now, have been brought into disrepute by the widespread public perception of the case. 

There is an air of unreality around the proceedings with regard to the fact that the continued distribution of the words complained of was never in question due to the Plaintiffs' consent to a third party to do so. Additionally, as London Greenpeace did not initiate the criticisms which were the subject of this libel case, and which had been widely made in media and campaign documents both previously and concurrently, there was a growing determination by substantial numbers of people to continue to publish similar criticisms, as a result of the perceived unfairness of the proceedings, and also of the need for an unfettered public debate over the issues raised by the business practices of such a large and an influential corporation. This, along with the fact that McDonald's have stated they are not interested in costs, collecting damages or obtaining an injunction, means that their only real aim in bringing the case was to use the courts as a public showcase for their company image. We believe this is of grave concern given the huge chunk it has taken out of our lives, the court time that has been taken up, and the deterrent effect it has had on many people (particularly those in the media), of making criticisms which they believe are valid.  As such we believe that the case is deserving of scrutiny, and submit that there was not and is not an appropriate basis for their legal action. 

HELEN STEEL
DAVID MORRIS

(30th June 1999)

Individual Witness Statements
Court Transcripts
The Issues
The Verdict Index