This reply should be read with the full application. Since the respondent has not dealt with all the matters raised in the application on a point by point basis and it is not always clear which paragraphs of the application the respondent is alluding to, it has been necessary in this reply sometimes to re-state and expand upon what is in the application.

Introduction.

1. The Applicants reply as follows to the Respondent’s Observations, dated 12 March 2003. In the main, the Applicants have followed the paragraph numbering used in the Respondent’s Observations. However, they begin their reply with a preamble which deals with the underlying themes in the Respondent’s Observations, and with general observations on two major issues raised by the Respondent, namely (i) the suggestion that along with assistance from the courts, the applicants received sufficient advice and representation on a pro bono basis from both counsel and solicitors, to enable a fair trial (see the Respondent’s Observations at para.3.18); and (ii) the suggestion that the Applicants have not particularised which witnesses they were unable to call and what issues they were unable to deal with effectively (Respondent’s Observations para.3.15). Some of the general observations are taken from the letter to the Court dealing with the case of McVicar v UK (dated July 2002), which it appears the Respondent may not have seen.

Preamble.

2. The Applicants are campaigners who were found merely to be responsible for distribution (and, in the case of Mr. Morris alone, for some small unspecified part in the production) of a leaflet, written by others (four years before the writ was issued), as part of a protest against McDonalds. There is a world of difference between the burden on a journalist, without a lawyer, to prove what he wrote was true: he is, almost by very definition, his own best witness and readily knows which witnesses to approach, proof and prepare. For campaigners to prove the truth of the contents of a campaigning leaflet they didn’t write, particularly one raising several profound global issues, without any legal assistance whatsoever is nigh on impossible.
3. It is hard to imagine a case with more wide-ranging issues than those raised in this application. The hearing in Steel and Morris lasted 313 court days – the longest trial (civil or criminal) in English legal history and resulted in a 762 page judgment (see appendices 11 and 13 of the full application which analyse the trial proceedings, which included 40 days of legal argument). Before trial there were 28 further preliminary hearings (some lasting up to five days) and following the trial there was a hearing at the Court of Appeal that lasted 23 court days. The Applicants had to conduct virtually the entire proceedings on their own. To a very limited extent - literally several court days out of several hundred court days in total - a sympathetic lawyer would assist, usually by acting as a legal ‘friend’ in court.
4. The argument of the Applicants is not just that without legal assistance they did not fully understand what was required of them in relation to witnesses etc., but much more fundamentally that, without legal assistance, they were simply unable properly to trace, proof and prepare written witness statements from the witnesses they called, and those they would have liked to have called. They faced a particularly heavy burden considering the international nature of the case, and the evidence required. For most of the witnesses whom they did call, including the many defence experts required, the applicants had the nigh on impossible burden of analysing, sifting, and managing the huge volume of relevant documentation in order to provide the witnesses with the reference material they needed. Indeed the whole process of 'disclosure' - which continued right up to the end of the trial - was a farce because the applicants were unable, without legal guidance and assistance, to properly assess what documents they were entitled to and how to argue for them. Additionally, although the Applicants served Interrogatories on McDonald's long before the trial started, the courts ordered that McDonald’s did not have to answer them as they were not formulated properly. If these had been answered the length of the trial might have been substantially shortened.
5. At the time of the proceedings Ms Steel was employed as part-time bar worker or unemployed and Mr Morris, a former postal worker, was an unwaged, single parent. Neither of the Applicants had any formal legal training. Very many complex legal issues arose during the course of the trial, and additionally, the trial itself held an inquiry into the scientific evidence on a large number of issues, including the relationship between diet and degenerative diseases - issues which the appeal court had deemed too complicated for a jury of ordinary people to manage and deliberate on (see appendix 10 of the full application).
6. In reality, it was physically impossible for two unwaged individuals to prepare a case of such size. For the two and half years of the trial, all the applicants could hope to do was to keep going: on several occasions the applicants had to seek adjournments because of their physical exhaustion and when in March 1996 Ms. Steel was certified as suffering from stress and exhaustion by her doctor, the trial continued in her absence (see para.357 of the full application). They were in court all day, trying to prepare at night and maintain a semblance of family life. As the full application makes clear, Mr. Morris is a single parent with a young child. The result was that, without legal assistance, the case was under-prepared, unready for trial and was advanced by two inexperienced, untrained and exhausted individuals who were pushed to their physical and mental limits. In short it was patently unfair.
7. The High Court refused to have a trial by judge and jury because it ruled that some of the issues were too complicated for a jury to properly understand and assess (see again appendix 10). The length of the hearing and of the judgments is testimony to the complexity of the case. Moreover, the applicants had no real legal assistance. Of the hundreds of court days in total (28 pre-trial hearings - some lasting up to five days, 313 days of trial, and 23 days in the Court of Appeal), the applicants were assisted by lawyers on less than 15 days (see the specific Observations made below in response to para. 3.18 of the Respondent’s Observations). It should be noted that the 40 days of legal argument during the trial covered a huge range of complex legal issues, and resulted in at least 38 written judgments (see Rulings Index, Appendix 59). Further, it should not be overlooked that the applicants burden in relation to the Appeal was substantially increased by the requirement that they reduce their legal arguments to writing and submit them before the hearing, a task familiar to lawyers but wholly unfamiliar to a ex-postman and an ex-gardener. Except on the discrete strike out/no jury appeal, the assistance the applicants did receive was not by specialist lawyers, but by sympathetic, but largely inexperienced and junior lawyers who were not specialists in libel law, largely unfamiliar with the details of the case and acting voluntarily, unsupported by solicitors and administrative staff. All they could realistically do, when available, was to act as a ‘friend’ to the applicants in court on very few occasions.
8. The reality was that the size of the case (and tens of thousands of pages of documents), and the length for which it lasted, prevented any ad hoc voluntary lawyer, with a few hours to spare - however sympathetic - from providing effective assistance. The applicants could not hope adequately to brief such lawyers or show them any more than a fraction of the relevant documentation they needed to see. And the routine of the days when the court was hearing the trial left little or no room for legal assistance. Ms. Steel and Mr. Morris went straight to court from home at about 9.00am in the morning and straight home afterwards at about 5.00pm. Mr. Morris had to look after his son and both had to prepare themselves for the next day. That was essentially the routine for 313 days. Their burden was greatly increased when McDonalds were permitted to make substantial changes to a number of key issues in McDonald’s Statement of Claim on publication and nutrition when much of the evidence on these issues had already been heard, and at a time when the applicants could not make serious efforts to obtain the necessary extra evidence because they were already overloaded with preparing for each day’s proceedings. The final 23 days Court of Appeal hearing were conducted by the applicants alone.
9. The contrast and inequality between the parties' legal assistance could not have been greater. McDonald’s were represented at all hearings - and in particular by a Queens Counsel specialising in libel law, for the final 8 months of the pre-trial hearings, throughout the whole trial, and until the end of the final appeal. He was supported in court by a junior barrister (also a defamation specialist), at least 2 or 3 solicitors, and many administrative staff - as well as the full resources of a large firm of solicitors (again also defamation specialists).
10. In McVicar v UK the Court dealt with the burden of proof under Article 6 and Article 10. It held that the fact that the applicant was faced with the burden of proving the truth of the allegations did not automatically require the provision of legal aid. It further held that since the applicant was a well-educated and an experienced journalist, capable of formulating cogent argument, the fact that the burden of proof was on him was not sufficient to require legal representation in his case (para.53).
11. The applicants in this case put the burden of proof argument on a different footing. (see paras 189-223 of the full application). As the Court recognised in McVicar, although the burden of proving the truth of the allegations does not automatically require the provision of legal aid to defendants, each case has to be assessed on its facts. The applicants in Steel and Morris were defendants in a wide ranging libel action, international in scope, brought by a multinational, multi-billion dollar corporation, which naturally had the benefits of a well resourced legal team, able to thoroughly gather all relevant evidence both in the UK and internationally, to contact all the witnesses they needed, to instruct relevant expert witnesses without limitation and to muster huge support resources. At trial, with the burden of proof on the applicants as defendants, they lost on a number of key points simply because they were unable to produce sufficient evidence to satisfy the trial Judge to the required standard: clear examples include the allegations on nutrition, diet and degenerative diseases, food safety, McDonalds attitude to trade unionism and McDonalds’ international beef supplies.
12. On several occasions the applicants were alerted to potential witnesses, but, unwaged and without legal assistance were simply unable to make proper contact with the witnesses. Equally often, even where a witness was contacted and agreed to give evidence, the applicants simply did not have the time or the expertise to take a proper witness statement. Therefore they had to ask the witness to write his/her own statement. But, of course, the witness - unguided by a lawyer and usually without copies of all the relevant documentation - rarely knew exactly what to include in his/her statement. What resulted was often a handwritten statement from a witness who did not fully understand the case and which did not cover all the relevant issues. To compound matters, mid-way through the trial (day 166 of the trial) Bell J. prevented witnesses from giving evidence on any issue not properly raised in his/her witness statement. As stated above, appendices 11 and 13 of the full application show the volume of witness evidence given at the trial, but there were also dozens of witnesses on both sides who gave evidence solely in writing - the applicants faced the same problems of tracing and obtaining adequate statements from these witnesses.
13. In McVicar (para 83) the Court refers to the distinction in its case-law between factual statements and value judgements. In McVicar there was no issue of opinion or value judgments, however in Steel & Morris the publication concerned was a mixture of factual statements and value judgements. The applicants contend that part of the reason the verdict was against them on various issues was due to the ‘meanings’ determined by the trial Judge and whether each part of the leaflet was fact or comment/value judgement. Several days legal argument took place over this, and the applicants contend that they were severely disadvantaged by lack of legal representation. In turn, the decisions made by the Judge on meaning affected the level of proof the applicants were required to bring.
14. The Court in McVicar commented that the "duties and responsibilities" of Article 10(2) are liable to assume significance when there is an attack upon the reputation of a private individual. In Steel & Morris, the publication related to a multi-billion dollar, multinational corporation, and to the fast food industry as a whole. This is particularly significant in the light of the fact that the McDonald's Corporation has only a trading reputation yet did not prove, and were not required to prove any actual loss of business. Indeed their profits and turnover increased substantially throughout all the relevant periods.
15. McVicar (para 73) refers to Article 10 being subject to the proviso that persons should be acting in good faith. It should be noted that in the Applicants case, the UK Court accepted that the Applicants were not the authors of the publication concerned and also that they genuinely believed that the contents of the leaflet were true (see para 200 of application). Furthermore, in Steel & Morris, all the allegations made in the leaflet had been printed or reported elsewhere in books and/or the media prior to the alleged publication by these Applicants. Additionally McDonald's had consented to the publication of substantially the same document by another organisation. Therefore the Applicants would not have been unreasonable in assuming that they were true. These differences also distinguish Steel & Morris from the circumstances outlined in para 86 of McVicar.
16. In this case the Article 6 complaint is broad and relates to a range of hurdles the Applicants faced during the course of the proceedings (and the compound effect of these). Details are set out from paragraphs 331 to 385 of the full application, and include the following heads:
1. Administration and preparation of case (337 – 340)
2. Ms Steel's evidence in Court (344)- 4 days giving evidence on a wide range of issues with no advocate to guide her, pick up on unclear points or to challenge and protect her from inadmissible or prejudicial questions.
3. The admission of the "Haringey Affidavit" (347 –355) – while evidence from Mr. Morris’ solicitor to explain the circumstances in which it was drafted and signed was excluded - was a crucial issue, as without this contested document having been admitted during the final stages of the trial, it is doubtful that McDonald's case against Mr Morris would have succeeded.
4. Oppression, stress & exhaustion (356 – 360)
5. Amendments to McDonald’s claim in the late stages of the trial, in relation to the applicants extent of liability for publication (360 – 367)
6. Delay in bringing proceedings (and further delay due to amendment) (368 – 373)
7. Reversal of the burden of proof/acceptable assessment of facts (374)
8. Private investigators continuing to infiltrate London Greenpeace after service of writs (376 – 378)
9. Denial of equal access to notes of private investigators (379 – 385).

The applicants’ legal advice: response to para. 3.18 of the Respondent’s Observations

17. Although the Applicants had limited initial advice drafting their defence and early pleadings, they had to prepare and present their case on their own, with no lawyer in court, still less assisting except for a handful of discrete occasions.
18. To the best of the applicants' recollection, the occasions listed below were the only times when they were represented or lawyers spoke in Court on their behalf.

[Writs were issued by McDonald’s on 20.9.90]

 

[1] Pre-trial hearings

There were 28 pre-trial hearings and appeals, which took place on a total of 37 days. Submissions were made on behalf of the Applicants on these dates:

Application made on behalf of the then 5 defendants (the Applicants & 3 others) by Birnbergs solicitors, for a 21 day extension for filing the defence.

Keir Starmer (counsel) made a legal submission in response to McDonald's application to strike out sections of the Applicants' case.

16.2 & 1/15/16.3.94

Under a pro-bono scheme organised by Liberty, Richards Butler solicitors and Patrick Milmo QC (counsel) represented the applicants for their pre-trial appeal over the denial of a jury trial and the striking out of large sections of their case. (Appeal Judgements 25.3.94).

Richards Butler (solicitors) application to postpone start of trial (due to start 18.4.94)

Jonathan Crystal (counsel) made a legal submission during an application to delay the start of the trial.

[2] Main trial

The trial began on 28.6.94 and lasted 313 court days, finishing on 13.12.96 (Judgement 19.6.97). In addition to this there were several visits to the Court of Appeal whilst the trial was ongoing, for appeals against rulings made in the course of the trial. Submissions were made on behalf of the applicants on these dates:

(Day 262) Peter Hall (counsel) made a legal submission to the trial judge for disclosure of the notes made by the private investigators during their infiltration of London Greenpeace.

Andrew Nichol (counsel) represented the Applicants in the Court of Appeal regarding McDonald's being allowed to amend their Statement of Claim on the Publication issue (see paras 55-59 and 360-367 of the full application)

(Day 280) Keir Starmer (counsel) made a legal submission to the trial judge for the private investigators to be joined to the proceedings as third parties, in the light of their admissions that they had distributed the leaflet complained of during the time they infiltrated London Greenpeace.

[3] Appeal

The applicants represented themselves throughout the entire appeal, which began on 12.1.99 and lasted 23 court days, finishing on 26.2.99 (Judgment 31.3.99). They also represented themselves at a number of hearings about the appeal before the appeal itself started.

 

19. It can be seen from this detail that of the 37 days when the Applicants attended pre-trial hearings, lawyers spoke on their behalf on only 8 days. Of the 313 days of the trial itself, and additional days in the Court of Appeal during the main trial, lawyers spoke on their behalf on 3 occasions. During the final Appeal lasting 23 days (and during pre-Appeal hearings), the applicants represented themselves at all times.
20. In respect of representation at interim hearings in the Court of Appeal, this was not able to compensate for lack of representation in the court below, since in a number instances the Court of Appeal stated that the decision made had been within the Judge’s discretion and therefore they would not overturn it, whereas if the Applicants had been represented in the Court below, the Judge might have exercised his discretion in the applicants favour.
21. Although sympathetic lawyers did occasionally ‘assist’, there was little they could do for several reasons: (i) the case was simply too complicated to be suitable for assistance for a few hours or days (which was all that was ever offered) (ii) the offers of assistance were generally from inexperienced and junior lawyers with no expertise in libel law (iii) sympathetic assistance not backed up by resources was of very limited use - what was needed was an expert and well resourced lawyer to guide the applicants through the case and to trace, proof, prepare and manage all the relevant evidence.
22. Even where assistance was given by sympathetic lawyers, this was largely limited to general advice about how courts work and other general matters, or on some specific points of law which arose. Since the applicants had to approach whoever was available, there was not even consistency of assistance, with the result that this necessitated a further burden on the Applicants who had to try to brief different lawyers on each occasion. There was simply no effective advice or assistance - in court or out - on the detail of the case and how to present the evidence or the arguments. Here the Applicants refer to and rely on the witness statement of Mr Stephens dated 28 August 2002, sent to the Court and formally adopted by the Applicants as part of their case (for ease of reference a copy is appended to this reply - Appendix 60).
23. If the Applicants had been able to instruct a specialist legal team they are likely to have had far greater success at trial. If legal aid had been available to the applicants, in relation to a case of this size and involving such wide-ranging issues, it is likely that a senior, specialist solicitor from a firm known for its expertise in libel law would have taken the case. Such solicitor would have then sought to instruct two to three specialist counsel (as did McDonalds), including a Queens Counsel, have the assistance of another more junior specialist solicitor along with an administrative and paralegal support team. Proper access to IT, photocopying, telephone and storage facilities would have been available via the solicitor’s firm and it is likely that an application would have been made to the Legal Services Commission to provide a live transcription service during trial. There would have needed to have been efficient administration and management of the documentation, which was bulky and requiring constant access, updating and selective copying throughout the whole trial. The legal team would have fully prepared arguments and submissions and would have been able to undertake proper evidence gathering including gathering evidence from abroad (where appropriate), ensuring that all witness statements were prepared correctly and were admissible. Mr Morris raised the problem of compiling proper witness evidence without the benefit of legal aid in the Court of Appeal: see transcript extract (Appeal Day 3 p71, Appendix 61).
24. In cases requiring evidence to be gathered from abroad or other international issues the Community Legal Service can and does authorise payment of expenses for the lawyers to travel abroad. As the Applicants’ case involved many international issues - which, indeed, featured strongly in key points on which the Applicants failed to succeed - an application would have been made to the Legal Aid Board (as it then was) and undoubtedly granted to cover all the reasonable costs of evidence gathering abroad such as telephone calls, faxes and even foreign travel for lawyers to find and proof witnesses. Finally, appropriate expert evidence would have been sought (rather than just ad-hoc assistance from sympathetic experts using a restricted number of documents). The experts would have been fully briefed and would have been asked not only to give evidence but provide a full analysis of the claimants’ evidence. It is understood that all of the above measures were (very properly) taken by McDonald’s legal team which included an established defamation specialist Queens Counsel, a major City of London law firm, again with a reputation in defamation law, all supported by a strong in-house legal team at McDonalds. This kind of preparation and representation is in stark contrast to the reality of the actual preparation and representation afforded to the Applicants.
25. The Applicants were therefore under an extreme burden in preparing and running the case. It is of significance that the neither the trial judge not the Court of Appeal took any effective steps to limit the scope of the claim brought against the Applicants so as to make the trial fair and manageable.

Witnesses and other evidence that the Applicants would have called: response to para. 3.15 of the Respondent’s Observations

26. It is very much the applicants' case that they would have been able to prove the truth of one or more of the charges found to be unjustified had they been provided with legal aid. At trial, with the burden of proof on the applicants as defendants, they lost on a number of key points simply because they were unable to produce sufficient evidence to satisfy the trial Judge to the required standard: clear examples include the allegations on diet and degenerative diseases, food safety, McDonalds attitude to trade unionism around the world and McDonalds’ international beef supplies.
27. The applicants are not in a position to list all the witnesses and other evidence that they were unable to call. However, the following are examples of witnesses, evidence and leads which the Applicants would have wished to have followed up if they had adequate legal assistance and resources. Obviously they faced particular difficulty with areas of the case where key evidence was only to be found abroad. But additionally, being unable to meet most of their witnesses before they came to court - in order to take full and proper statements, and obtain witnesses comments on disclosed documents - meant that the applicants’ case at trial was undermined. The examples given are very important because it is the Applicants’ case that on many issues very little by way of further evidence would have been needed to tilt the case in their favour: see pp.37-42 of the main application.

1. A major issue of the case lost by the applicants was proof of McDonald's involvement in the destruction of rainforest through the use of beef supplies reared in former tropical forest regions. Appendix 31 of the full application sets out a range of authoritative sources for this that pre-date McDonald's service of writs in 1990. Two pivotal matters were the export of Costa Rican beef to McDonald's in the USA, and the rearing of beef cattle raised on former Brazilian rainforest zones for use by McDonald’s:
2. There was evidence from major players in the beef industry in Costa Rica (Sr. Quintana the marketing director of McDonald's sole beef supplier and a major exporter to the US, and also Alberto Amador Zamora, the President of the Chamber of Beef Cattle Producers) - in the form of interviews for the film 'Jungleburger' (an internationally renowned and award-winning documentary by Peter Heller) in 1982 - that Costa Rican beef was being exported for McDonald's use in the USA in the 1980s. The film was shown as evidence (with extracts from the relevant interviews), and the director provided transcriptions of the uncut interviews, although the original uncut footage had been lost (see appendix 34 of the full application). McDonald's response was to submit written statements from Sr Quintana to deny the truth of the statements made in the interviews, to criticise the integrity of the film-maker and to call a different interviewee in order to criticise the integrity of the film-maker.
3. Well before the trial began, Mr Morris had made some attempts to trace the 2 witnesses in Costa Rica, and other related potential witnesses mentioned in the film or involved with the industry. The interviews were seen as a 'smoking gun', and that McDonald's had since engaged in a cover up. Telephone calls to Costa Rica had been made with the help of a volunteer translator but Mr Morris was unable to make any progress. It seemed potential witnesses were reluctant to speak over the phone, perhaps not being sure who they were talking to, whereas if the applicants had the resources to meet the witnesses with the relevant court papers, they may have been more forthcoming with information.
4. It is clear that the applicants' case required the attendance or statements from relevant witnesses (see trial judgment pp121-4, and p133 para 2, reference to 'Mr Heller's informers other than Sr Quintana remained background figures'). This proved impossible to achieve due to lack of resources. The applicants, with greater resources, could have also called Mr Heller himself to testify about the interviews, or at least taken a fully proofed Statement rather than the series of letters/statements sent by Mr Heller.
5. The 'Jungleburger' interviews were not the only lead - in an article 'The Hamburger Connection' published in an authoritative magazine, Ambio, in 1982 (included in appendix 31), the author stated that 'on more than one occasion' in discussions about beef exports in 1976 and 1979 with a Costa Rican ranchers organisation he had been told that Costa Rican beef was used by McDonald's.
6. Mr Justice Bell was not satisfied by the defence evidence and found against the applicants on this issue.
7. A number of authoritative articles and books published in the 1980s referred to McDonald's links to the destruction of the Amazon forests for beef supplies (see appendix 31). But McDonald's denied any connection, and the applicants had no resources to investigate. A letter from the US Corporation to a member of the public in the UK in 1982 stated 'McDonald's has a long standing policy of buying all of our products from suppliers in the host country where we are doing business'.....'as a result we can assure you that the only Brazilian beef used by McDonald's is that purchased by the six stores located in Brazil itself'.
8. McDonald's were reluctant to identify the sources of their beef supplies for their fast-growing number of Brazilian stores despite years of discovery applications by the applicants before and during the trial to compel them to disclose the relevant information. The judge had ruled that Brazilian beef supplies were not part of the case due to the lack of evidence. But before the trial there was an inadvertent pre-trial disclosure by McDonald's legal representatives of a handwritten document containing the revelation that Brazilian beef had been secretly imported for the use of McDonald's UK in the mid-1980s. McDonald’s asked for the document back, but it had already been shown to defence experts and was no longer privileged. As a result, Brazilian beef supply sources became an issue, and the discovery applications by the applicants continued, they being entirely dependent on the discovery process for this matter.
9. McDonald's eventually disclosed statements (from Roberto Morganti, the Director of McDonald's local hamburger manufacturers, Braslo Ltd) with lists of local areas/towns supplying beef for the use of their local stores in Brazil, but for some reason no details about local areas in Goaias state (which included rainforest zones). At this stage the applicants, if they had the legal assistance they needed, would have investigated and sought relevant information and witnesses.
10. Finally, near the end of the trial, and after all but one of the 'rainforest' witnesses had been called, McDonald's finally disclosed the missing list of beef sources in Goiais State which still currently supplied McDonald's. The applicants didn't have the resources or ability to call witness evidence from Brazil about this dramatic and crucial information. But by chance their last rainforest expert witness, Sue Branford, had visited and studied some of the named areas in Goias State - especially along the River Araguaia (a tributary of the Amazon) and its tributaries. She testified that in the early 1970s it was an area of Amazonian tropical rainforest. Ms Branford had witnessed it being cleared and burned for cattle ranching from the mid-1970s up to the mid-1980s (with indigenous people being forced out). She said forest clearances continue, but at a slower pace.
11. Sue Branford's evidence was fully corroborated by a last minute written submission from defence expert witness Professor Susanna Hecht (who has conducted extensive field research in the relevant regions) who added, in a statement sent from the USA: "I am certain that a substantial proportion of cattle supplied to Cuiaba meat plants (1979 - 82) and to Goias Carne for the last 20 years up till now would have been cattle from rainforest areas".
12. McDonald's witness, Sr Morganti, claimed that the farms in the named areas supplying McDonald's had not caused deforestation. Justice Bell in his judgment (see pp161-6, and p170-1) concluded that it was indeed 'odd' that the supply details had been provided so late, but that the evidence of destruction of rainforest and displacement of small farmers 'is insufficient'.
13. It is clear that he required more detailed on-the-ground evidence about the history of the supply areas named - even at that late stage the applicants, with the necessary resources, could have sought out relevant witnesses which may well have tipped the scales in this crucial part of the case. The Judge disregarded the views of Professor Hecht, one of the world's foremost authorities on the Amazonian rainforest, as he thought that her short statements (the last hurriedly made after she had been sent the list of McDonald's supply sources in Goias State) included 'averments....which were very forceful without any real basis for them being shown'. If the applicants had had the resources to take a full statement from Professor Hecht and to call her as a witness at trial, her testimony may well have been persuasive and this part of the case found in favour of the applicants.

1. Although the trial Judge found as a fact that '[McDonald's] are strongly antipathetic to any idea of unionisation of crew in their restaurants' and that "There have been occasions where McDonald's crew have lost their jobs or been victimised for union activity" the Court of Appeal upheld the judge's ruling that the applicants had libelled McDonald's because they had failed to prove that 'McDonald's have a policy of preventing unionisation by getting rid of pro-Union workers'. This was despite McDonald's UK Vice President and former Head of Personnel Sid Nicholson testifying that employees "would not be allowed to carry out any overt union activity on McDonald's premises" (Trial transcript Day 120, p5, line 27) and that 'to inform the Union about conditions inside the stores' would be a breach of the employee's contract (Crew Handbook), 'gross misconduct' and a 'summary sackable offence' (Day 120, p4).
2. The Applicants lost on this issue because the trial Judge considered that they had not shown enough examples of employees being sacked or victimised for trade union activity.
3. The Applicants had cited numerous documented examples of McDonald's victimisation of trades unionists in many countries (including disputes in Mexico 1985, Philippines, Puerto Rico 1970's, Detroit USA 1980, Arkansas USA 1983, Denmark 1980-90, Germany 1979-90, Philadelphia USA 1989, Madrid Spain 1986, Beijing China 1993, Canary Islands 1993, Canada 1993/4, as well as in France, New Zealand, Norway, Australia, and the Netherlands). However they had only managed to trace and get witness statements from some of those involved in the various incidents, and had only been able to call a very limited number of those witnesses to court.
4. McDonald’s called Stan Stein (US Senior Vice-President, Head of Personnel & Labour Relations) to rebut most of the applicants’ assertions in relation to these disputes. He stated that he visited many of the stores when disputes were on going. Since the applicants were not able to call live witnesses to challenge his version of events except in a very small number of cases, they were at a considerable disadvantage.
5. In his judgment the trial judge stated, (page 695 last paragraph), that 'there have been occasions when McDonald's crew have lost their jobs or been victimised for union activity. Dublin and Lyon are examples. But the examples are minimal in comparison with the very large number of operators.' This implies that more witnesses were required, in his view. McDonald's provided statements from its own management denying anti-union practices or victimisation - which seemed to carry weight with the trial judge. If the applicants had adequate resources they would undoubtedly have been able to trace, proof and call many more defence witnesses - and obtain improved statements from those who gave written evidence only. The applicants thereby may well have satisfied the trial judge in this important part of the case.

1. The applicants tendered a written statement by a U.S. journalist Lorraine Clorefene-Casten, who had interviewed several federal beef inspectors in the USA who worked at a slaughterhouse/meat processing plant which supplied McDonald’s. She had written an article based on these interviews, which was critical of conditions in the plant with regard to hygiene and food safety. McDonald’s objected to the admission of this testimony as hearsay and it was disregarded as a result.
2. In his judgement (p506) the trial Judge stated "I had no reliable evidence of unhygienic practices in U.S. slaughter and processing plants. Some evidence was introduced under the Civil Evidence Act, particularly in relation to a large plant of one of the First Plaintiff's major pattie suppliers, but it largely relied upon quotes in magazines and I could really have no confidence in the accuracy of the quotes or their reliability if the statements were made." The applicants believe that if they had legal assistance it is likely they would have been able to contact the beef inspectors to obtain full statements, which would then have been admissible as direct evidence of the poor hygiene practices.
3. The Applicants also consider that their evidence in this area of the case would have been stronger if proper witness statements had been prepared and clarified from witnesses who did give evidence at the trial. For example, shortly before giving evidence, several employment witnesses confirmed to the applicants that undercooking of meat often occurred in the store where they worked when the store was busy. However, they could not give evidence about this in court because it had not been included in their statements, and the applicants simply did not have the time to prepare supplemental statements for each witness.

1. Evidence on this issue was given in two main sections (between days 12 -37 of the trial and between days 252 – 269, following McDonald’s amendment of their claim) On this issue the applicants’ case would have benefited considerably if their case had been prepared with legal assistance, and there had been an opportunity to properly proof statements from their expert witnesses and speak in depth before they gave their testimony and before cross-examination of McDonald’s experts. A considerable number of scientific studies and reports were produced by both sides at trial on the relationship between diet and disease, and since the applicants had no formal scientific knowledge they were reliant on their experts in order to be able to deal with these effectively. What happened in practice is that initially the applicants sent the experts copies of their pleadings (drafted by the applicants themselves without professional assistance) and asked them to prepare statements based on these, with only short discussion of what was needed and relevant, and without a proper grasp of the issues. The applicants then met once with each of the experts shortly before they were due to give evidence for the first time.
2. This problem was compounded when McDonald’s were allowed to change their statement of claim on this issue after most of the evidence on diet and disease had been heard (see para 60-63 of application), and the applicants were required to obtain supplemental statements to deal with this. As the trial was underway whilst this was going on, and an adjournment to deal with this was refused, the applicants had no opportunity to meet with experts to discuss their new statements or the contentious claims by McDonald’s that since the trial started evidence on the links between diet and heart disease/cancer had got weaker. The applicants simply asked for the experts to prepare supplemental statements based on the new pleadings and on copies of McDonalds’ witnesses new statements.
3. As a result the applicants were ill prepared when their experts returned to court to give evidence for a second time. An example is on day 269 when the applicants asked the Judge for time to speak to Professor Crawford before he entered the witness box to clarify some matters in his new statement. This was refused, and Professor Crawford was not permitted to expand on matters not included in his statement.
4. In his Judgement the judge ruled in McDonald’s favour on the issue of the relationship between diet and heart disease and cancer, although the Court of Appeal overturned this decision in relation to heart disease. The applicants consider that had they had proper assistance they may well have convinced the Judge on this issue, particularly given that the applicants position broadly co-incided with that of the World Health Organisation (see appendix 19 of the full application).

The Applicants now turn to the specific Observations made by the Respondent and reply to them on a paragraph by paragraph basis.

Response to Respondent’s summary of the facts – Part I of the Respondent’s Observations.

1. In Part I the Respondent sets out its summary of the facts. The Applicants comment on that summary as follows:
1. There were no formal ‘members’ of London Greenpeace [Obs, 1.1 and 1.5]; see further para. 36 of the main application.
2. The Government’s summary of the relevant factsheet is not accepted [Obs., 1.3]. The Court is referred to the factsheet itself [Appx 1].
3. Enquiry agents infiltrated London Greenpeace until May 1991 [Obs, 1.5]; there is no evidence to support the Respondent’s suggestion that one agent remained involved of her own volition until May 1991;
4. In addition to the 130 oral statements referred to in para. 1.8 of the Respondent’s Observations, there were scores of additional witnesses whose written evidence and statements were accepted by the trial judge;
5. The Haringey affidavit was also the basis for the amendment of the McDonald’s statement of claim against the First Applicant [Obs, 1.10];
2. The Applicants note that the Government’s Observations on the facts do not seek to address (a) the extent of publication; and (b) the basis of the finding that the Applicants were responsible for publication of the leaflet.

Relevant domestic law and practice.

On this section of the Respondent’s Observations, the Applicants make the following comments:

Defamation.

3. [Obs 2.2] It is not accepted that the English law of defamation and the associated rules of procedure strike an appropriate balance between a claimant’s right to the protection of his/her reputation and a defendant’s right to impart/receive information; nor that the test of fairness was a "low hurdle" as suggested by the Respondent.
4. The following matters demonstrate that balance struck is inappropriate:
1. that good reputation is assumed, even in the business field;
2. that damage to reputation is assumed, even in the business field and even where as a matter of fact there is no economic loss whatsoever – and where McDonalds compromised their actions against others (Veggies) enabling the continued distribution of almost all the disputed criticisms and where the allegations were clearly in the public domain before being published by London Greenpeace; it is submitted that an analogy with public figures can be drawn here – just as wide comment and criticism can be made of public figures because they promote themselves publicly, so wide comment and criticism ought to be permitted in relation to multinationals such as McDonalds who promote themselves with very aggressive marketing;
3. that the burden of proving all defences is on the defendant, even where matters are within the peculiar knowledge of the plaintiff/claimant and where the defendants are not the authors of the publication in question – it is significant that a claimant is not even required to state under oath that the allegations complained about are in fact false, which would at least have a deterrent effect.
5. See Application, p.51 et seq. In particular, the Applicants contend that the requirement that they prove the truth of all statements of fact concerning complex matters of public interest, and the lack of a defence of ‘reasonable belief’, coupled with the blanket prohibition on legal aid deprived them of their rights under Articles 10 and 6 ECHR. Even if there are some circumstances in which it is appropriate to put a burden on the defendant in libel proceedings to prove the truth of any statement of alleged fact, it was inappropriate to apply that rule in the unusual circumstances of the Applicants’ case.

Availability of Legal Aid.

6. At all material times the policy that defamation proceedings were excluded from the legal aid scheme was inflexible. Parliament has since recognised the inappropriateness of such a policy. The Lord Chancellor can now approve the funding of a particular defamation action. This change came too late to benefit the Applicants. Moreover the current rules are vague and undefined. So far as the Applicants are aware, even with the policy change, no individual has in fact been granted legal aid to bring or defend defamation proceedings; it is, of course, for the Respondent to establish that the policy change is relevant to this application and that it has made a difference in practice (and not just in theory).

Amendment of pleadings.

7. On the law set out in p.13 of the Respondent’s Observations- see the main Application at paras.55-59. The amendment occurred after the Plaintiffs had begun calling their witnesses on the publication issue (see Appx 13), but the Applicants were refused an adjournment to meet the new allegations. In any event it is submitted that rule 5(5) of Order 20 referred to by the Respondents at p.13 of its Observations provided no safeguard to the Applicants in this case because amendments were permitted which raised issues completely different to and separated in time to the claim as originally presented.

Admissibility of evidence and disclosure of documents.

8. [2.9] In fact full disclosure was not enforced against McDonalds in the Applicants’ case. (See Application paras 379-385, relating to publication. Lack of disclosure, and late disclosure by McDonald’s affected other issues as well, making it extremely difficult for the applicants to obtain comprehensive witness statements and cross examine effectively).

Substantive Issues Arising.

The right to a fair hearing – Article 6(1).

Legal Aid.

9. See Application at paras.336-355 (p.135- 146).
10. The policy that legal aid was not available in defamation proceedings was arbitrary because it was an inflexible blanket policy. This policy has since changed to allow defamation proceedings to be granted public funding if authorised by the Lord Chancellor.
11. [Obs 3.6] In the absence of legal aid the Applicants did not have an effective right of access to court. Neither the trial judge nor the Court of Appeal took any effective steps to limit the scope of the claim brought against the Applicants so as to make the trial fair and manageable.
12. [Obs 3.11] – The Applicants were left exhausted by the proceedings. An overwhelming proportion of their lives was occupied for several years by seeking to defend the proceedings brought by McDonalds. They are likely to have been significantly more effective and successful had they had the benefit of the necessary resources. Importantly, the absence of legal aid deterred the Applicants’ co-defendants who were forced to apologise and sign undertakings not to repeat any of the allegations/criticisms – including those which at trial the Applicants succeeded in winning. This is a graphic example of the "chilling effect" of the defamation laws in issue in this case, their complexity and the lack of legal aid or assistance to guide and help ordinary individuals cope with the threat of litigation by wealthy and powerful multinationals.
13. It is crucial that the Court appreciate the impossible position that the Applicants were placed in. If they collapsed and gave up, the case would have been determined against them. But if they struggled on however difficult that may have been, they face the Respondent’s simplistic assertion that because they did not collapse and give up the proceedings were not unfair.
14. The comments made by the European Commission in S and M v. UK were made at a very early stage and before there was any real appreciation of the scale of the proceedings. It was not envisaged that the trial would last 313 days. Even as late as December 1993, Mr. Rampton QC for McDonalds made a submission that he estimated the trial would last 3-4 weeks. The sheer scale of the proceedings imposed impossible demands on the Applicants. Moreover the scope, complexity and length of the case would not have been predicted and the way in which the Applicants now put their case to this Court is very different to the arguments presented in S and M v UK.
15. [Obs 3.12] The Applicants’ closing submissions lasted 27 days largely because they were not reduced to writing in contrast to those of McDonalds. The Applicants did not have the experience or resources to put their submissions in writing. McDonalds were able to complete their closing submissions in 3.5 days because their submissions were in writing. The 3.5 days was largely spent clarifying and/or expanding on those written submissions. It is highly likely that as a result the Applicants’ closing submissions were not as effective as those of McDonalds. Had the Applicants been legally represented then written submissions would have been filed on their behalf.
16. In respect of the last sentence of Obs 3.12, the Applicants contend that the nutrition section of the case, central as it was to the claimants’ business, was recognised by the Court of Appeal as the most important of all the allegations in dispute. Yet, as the Respondent accepts, the applicants only failed to win this section because of a ‘technicality’ – the Court of Appeal in 1999 felt itself to be bound by a previous decision made by the Court of Appeal during the trial. At that previous Court of Appeal hearing (regarding the nutrition section) the Applicants had withdrawn most of their appeal points due to lack of legal representation and lack of time to prepare, and believing mistakenly they could raise such issues at any appeal at the end of the case if need be. [See Application para. 60-68 / Appx 14]. However, the Court of Appeal hearing in 1999 treated those earlier withdrawn points as having been submitted but not argued, and so felt they had no option but to treat them as already determined.
17. This exceptionally unfortunate situation is, it is argued, a highly revealing example of the unfairness facing the Applicants due to lack of Legal Aid and representation, and the fundamental effect it had on key areas of the case, and the case in general. In effect, court failed to find for the Applicants on this, the most important issue in dispute, despite the fact that:

1. The link between modern dietary patterns and chronic diseases is a matter of the highest public interest and concern
2. McDonald’s had in 1988 agreed an ‘accord of satisfactions’ with the main publishers of the factsheet, enabling the continued mass distribution of the words complained of – including the whole ‘nutrition’ section unamended [See Appx 25 of the Application]
3. The claimants had in 1984 themselves published an almost identical summary of the links between diet and disease, including cancer [See Appx 20, internal page 12]
4. The Applicants’ position on the issue was fully supported by the World Health Organisation [See Appx 19, internal page 157]
5. The Court of Appeal accepted that there should have been no need for an extensive expert tribunal (during the trial) on the links between diet and disease
6. The Applicants proved the issue in dispute (as accepted by the Government’s submission)
7. The claimants cannot be said to have a good reputation on this issue. They were found by Justice Bell to have falsely and extensively promoted their food as nutritious. Further, they were found to have exploited children (who are most susceptible to adopting long-term unhealthy dietary habits) with their marketing strategy.

1. It should be noted that in addition there had been a great deal of legal argument during the trial due to the claimants having been allowed to amend their Statement of Claim on this issue, and additional burdens on the Applicants including recall of expert witnesses.
2. The Applicants argue that this single but important example is a highly revealing snapshot of the unfairness manifest in the case, and the failure of the UK court in this case to protect freedom of speech and the public interest
3. [Obs 3.13] The Applicants list the following matters which demonstrate that legal aid was indispensable for the effective presentation of their defence [see Application paras 336 – 346 and Appendices 11 and 13 of the Application]:
1. complexity of proceedings;
2. the wide range of disputed issues and the international dimensions of the case;
3. length of proceedings;
4. the number of documents;
5. the number of witnesses;
6. the number of expert witnesses, dealing with a wide range of scientific issues
7. the number and diversity of legal issues
8. the number and scale of the daily administrative tasks.
9. the fact that when she gave evidence, Ms Steel had to act as witness and advocate without any assistance whatsoever.
4. [3.14] – The Applicants, as litigants in person, found all areas of defamation law with which they were confronted difficult and complex. It defies common sense for the Respondent to argue that defamation cases such as the Applicants’ are not complex when there was in place at the time a rule that defamation proceedings could only be commenced in the High Court and not the County Court because of their complexity.
5. [3.14] – The Applicants do not accept that the key issues were ‘legally straightforward’.
1. publication – (with the exception of one instance – 16.10.89) was not based on direct handing out of the leaflet but on involvement in London Greenpeace;
2. the process of determining the legal meaning of each section of the factsheet was very complex
3. the Applicants did not make the allegations in the factsheet (not being the authors);
4. it is wholly disingenuous to suggest that the Applicants were ‘well up to mastering any complexities of the law of defamation as it affected their case’. The Applicants received some advice at some points during the litigation. They did not, however, have an overall mastery or even understanding of the law of defamation; the applicants hoped the counter-claim would ensure some parity by requiring McDonalds to prove that the allegations made were in fact false – but the trial judge declined to require them to do so.
6. [3.15] – See above paras.26. & 27
7. [3.16]. The applicant’s emotional state could be characterised as extremely stressed and exhausted throughout the case, and clearly this affected their ability to present their case and make applications in the best way possible. By way of example on 14/3/96 during the course of a submission by the applicants  Bell J even said "I am not prepared just to accept declarations in court when a litigant in person is in an emotional state." [Transcript Day232/p15/line22. Appdx 62] . The fact that the applicants carried on with the case despite the stress and exhaustion was because of their fear of the consequences of losing the libel action – both for themselves and more generally for the freedom of speech of others.
8. In paragraph 3.16, the respondent takes the simplistic approach that because the subject matter of the applicants case was defamation (and not for example family separation), there were no serious consequences. In fact, there are obvious serious consequences for litigants losing a libel action, including the risk of losing their home. In this case the consequences of losing the litigation were and are very serious. As a result of being ordered to pay damages of £40,000 and £60,000 the Applicants were at risk. They remain at risk, if McDonalds choose at any time to enforce the whole or any significant part of the judgment the Applicants will undoubtedly be made bankrupt. It is inappropriate for the government to seek to minimise the very damaging affect that the case had on the applicants’ private and domestic lives for a prolonged period.
9. [3.17] It is highly misleading for the Government to cite the previous litigation in this court to assert that First Applicant has ‘considerable experience of litigation’. As the Government very well knows, the First Applicant was legally represented in both sets of proceedings referred to in the final sentence of Obs.3.17. Neither applicant had any experience of libel law (a specialised and complex field) prior to this case.
10. [3.18] – See above para.18. In fact, the vast majority of administrative and note-taking assistance received by the Applicants occurred at the start of the trial. As the trial progressed such assistance reduced significantly.
1. drafting pleadings: the Applicants received some advice as to the appropriate manner in which to present the pleadings. Importantly, however, specialist defamation counsel did not (as would normally be the case) consider the available evidence, advise on what further evidence was needed, and then settle the pleadings accordingly.
2. note-taking: the Applicants received very limited assistance in the form of note-taking for the first couple of months in the context of a trial which lasted 313 days; the notes were made by inexperienced individuals and, for that reason, were ultimately of very little use;
3. administrative tasks: the Applicants received hardly any administrative support’;
4. judicial assistance: although Bell J did sometimes reformulate questions, this was not always helpful and was not always designed to help the Applicants; anyway judicial ‘assistance’ is obviously no substitute for legal representation. Furthermore, any leeway that Bell J extended to the applicants, he also said he must extend to McDonald’s (for example in relation to witnesses expanding on their witness statements), despite the consequences for the applicants and the fact that McDonald’s had a full team of lawyers to prepare their case.
11. In relation to the point made by the Respondent in the last sentence of para.3.18 of its Observations, the Applicants do not recollect being given an opportunity to reconsider, but in any event reply that this totally misses the point – they had no option but to withdraw the other parts of their appeal because they were unprepared and unable to present their arguments because they were unassisted by lawyers; simply to ask whether they were going to withdraw in the circumstances achieved nothing in terms of fairness. No opportunity was given for an adjournment.
12. [3.19] – It is not appropriate to speculate as to whether or not legal aid would have been capped or restricted in any way had the Applicants been entitled to it. Such an exercise is so speculative that it cannot assist the Court in determining the Applicants’ complaint. In any event, the Government has failed to provide any particulars of (a) the extent to which legal aid would have been capped; and/or (b) the way in which it is asserted legal aid would have been restricted. The Applicants do not contend that they ought to have received legal aid of £10 million. Had legal aid been available – even if only to fund administrative back up – that would have significantly improved the Applicants’ position.
13. Further, the applicants complaint is that not only was no legal aid available, but that alternative steps were not taken to ensure fair and effective access to the court, for example by early rulings to strike out parts of McDonald’s claim where the issue was clearly one of opinion e.g. low pay, or where McDonald’s had previously made or accepted similar statements in public documents, or where renowned public bodies had made similar statements. The applicants submit that at least 50% of the length of the trial was taken up with an extensive yet unnecessary tribunal of fact and scientific opinion on just a couple of issues – 100 days having to prove low pay and poor working conditions, and 60 days scientific evidence on the links between nutrition and health. Effective legal assistance and representation may have resulted in these issues being dealt with in a more appropriate and fair manner.
14. Considering the nature of the case, it is submitted that the Respondent’s view that any grant of legal aid would have been ‘highly questionable’ adds weight to the view that the Respondent’s criteria for the invoking of the current option for the granting of Legal Aid in a defamation case may be so unattainable as to fall very wide of the mark as an effective guarantee of access to justice.
15. [3.20] The Applicants’ case was self-evidently exceptional. No litigant in person should be expected to defend defamation proceedings which lasted 313 days.

The Haringey Affidavit

16. See Application, p.141-146. The applicants submit that it is not just the admission of the Affidavit which was unfair, but also allowing it to have any weight considering the nature of the shorthand summary of the case. [See Appx 51 of the Application for similarly mistaken ‘shorthand’ wording in various Court judgements, including by the EHRR Commission in 1993].
17. [3.21] – Equally importantly, real prejudice against the Applicants was occasioned by the non-admission of the letter from the 2^nd Applicants solicitor explaining the circumstances of the Haringey Affidavit. The Applicants were not aware that the letter would be declared inadmissible. Bell J did not warn the Applicants before the closure of the evidence that he was excluding the letter. The Applicants did not, therefore, realise that they had to adduce further evidence to rebut the Haringey affidavit. The Second Applicant also had sworn and served an affidavit explaining the circumstances of how the Haringey Affidavit had come to contain the solicitor’s mistake. The Applicants did not, therefore, realise that they had to adduce further evidence to rebut the Haringey affidavit. In fact, at this very late stage of the trial it was understood that everything should be done to avoid the calling of any new witnesses, and that their oral evidence could be (and indeed was) treated as written evidence under the Civil Evidence Act as long as no-one objected. The Applicants certainly assumed this would be the case with a letter from a solicitor, which had indeed been read into the record with no objection by McDonald’s.
18. It was not until during the closing speeches that the applicants became aware that the solicitor’s letter and the ‘explaining’ affidavit, had been excluded. See Trial Transcripts; Day 305, pp4-9 [Appdx 63] for the debate during closing speeches - after the closure of the evidence - between the Second Applicant and the trial judge over the legal status of the Haringey Affidavit. The Second Applicant then specifically asked if the solicitor’s evidence could be admitted at this late stage, but Mr Justice Bell said that it was too late to call the witness. [Trial Transcript, Day 305 page7 line 28 – Appdx 63].
19. [3.21] second para, 5^th line – the Government’s submission here confuses the First Applicant with the Second Applicant.
20. [3.22] – Without the Haringey affidavit Mr Clare’s evidence would have been disregarded. In those circumstances there would have been no evidence to prove publication against the 2^nd Applicant. In fact there was substantial evidence from the defence witnesses to the contrary.
21. Further, the Govt here conflates involvement with London Greenpeace (whether or not longstanding), with production of the leaflet. It should be noted that a report by the enquiry agents hired by McDonald’s states "Morris has attended Greenpeace meetings, but is not an active organiser" [appx 9]. [note: The applicants were not given a copy of this document, despite it being in McDonald’s possession, until after the trial had finished.]
22. [3.22] The Second Applicant’s ‘longstanding involvement in London Greenpeace’ is cited as ‘evidence’ of publication. But, it is submitted, mere involvement in an unincorporated association with no formal membership and a wide range of activities cannot be evidence of specific responsibility by an individual for the production of a specific document. This is especially significant because the burden of proof on Publication is on the claimants.
23. [3.23] The Court of Appeal’s view [See Court of Appeal judgment, p81F-G] at the final Appeal was that their court had pointed out during an earlier interim Appeal ‘the potential value’ of the Haringey Affidavit as evidence against the Second Applicant. But Mr Morris had taken the issue of the Haringey Affidavit seriously all along. He had taken and continued to take what he believed were the appropriate steps during the trial to demonstrate that the Affidavit was inaccurate, was worthless as a piece of evidence, and was effectively countered by written statements from himself and from the solicitor who had drawn it up.

Oppression and the lack of adjournments.

24. [3.25] It should be noted that the courtroom in which the trial was held was also used for other cases during adjournments and rest days. No extra court time would have been taken up by giving the Applicants adequate preparation and rest periods.
25. [3.26] – No request has been made to the Applicants for copies of the transcripts referred to in para.3.26 of the Government’s observations. All parties, the trial judge and the Court of Appeal had the authorised transcripts in paper and electronic form. Copies of such transcripts can be supplied in an accessible and authorised electronic form.
26. It is not correct to say that the Applicants conducted the claim against them ‘jointly’. Whilst obviously there was some overlap, the Applicants concentrated on and researched different aspects of the issues when preparing the case and throughout the trial. With the exception of major legal arguments they prepared for the proceedings separately from one another, usually only discussing their approach to the day’s proceedings on public transport to and from court and by telephone. They frequently had different approaches to questioning witnesses and making submissions, and furthermore, they also had disagreements on various issues throughout the proceedings. For example Mr Morris was opposed to sub-poenaing Lord Vestey to give evidence, so Ms Steel did this on her own. The Applicants were not acting for one another and both had a right to be present for the entire duration of the trial.
27. The 1^st Applicant supplied the name and address of her doctor to Bell J. She asked for those details to be withheld from McDonalds in order to protect her privacy. This was not an unreasonable request in view of the fact that McDonalds had been spying on her. Furthermore, Bell J and McDonald’s lawyers, both accepted that they had been concerned that she was not well. See Day 97 page 2 line 39 on, & page 5 line 14 on [Appendix 64].
28. It is wholly incorrect to assert that ‘the facts on which McDonald’s amendment of their Statement of Claim was based were substantially the same as the facts already in issue, therefore there was no need for significant further preparation time to deal with the amended case’. In particular, the Applicants had not prepared pleadings, witness statements or documents to deal with events prior to October 1989 [see paras 55-59 & 360-367 of Application]. The applicants also applied for an adjournment after McDonald’s amended their claim on the nutrition section of the case [see Application paras 60-68], which clearly necessitated further work for them, yet this too was refused.
29. [3.27] The figure of 929 days includes weekends and court holidays. The trial lasted 313 days. During that period the Applicants spent a number of additional days in the Court of Appeal. Indeed, according to the Court of Appeal figures quoted by the Respondents, for two thirds of all the days sat during the trial (a total of 214 out of 313) the Applicants had little or no preparation time at all: i.e. 130 days of the hearing were compressed into 5-day weeks, and 84 days of the hearing were compressed into 4-day weeks. The pattern was the same or even more arduous and unrelenting during the appeal, which sat for 23 days out of 35 available working days, with no substantial breaks at all. The Government’s Observations fail to appreciate the demands on the 2^nd Applicant of being solely responsible for the care of his young son especially at evenings, weekends and school holidays. Further the 1^st Applicant had to go to work at the weekend.

Amendment of McDonald’s Statement of Claim.

30. [3.30] – See Application at paras. 55-59 & 361-367. It is important to note that McDonald’s had specifically limited their case on publication to a very few specific dates in 1989 and 1990 [App para 56] and had stated they were not claiming for production, therefore the amendment could not be based on the same facts or substantially the same facts as those already pleaded. Had McDonald’s not limited their case in this way initially, the applicants would have requested further details of McDonald’s claim for their liability before the trial began so that they could collate evidence to rebut the allegations.
31. [3.31] The applicants submit that since no dates of alleged publication prior to October 1989 had been pleaded previously, nor any evidence adduced of the applicants’ involvement prior to that date, the amendment could not be based on the same facts or substantially the same facts as those already in issue. The Government’s submission that the amendment was permissible because the applicants’ liability was based on their longstanding and core involvement in London Greenpeace would be a clear breach of Art 10 and 11, in that they are being deemed to be responsible for the actions of a group without any determination that individually they had been responsible during the period concerned. [see Ezelin v France (1991) 14 E.H.R.R. 362, p389 para 53. "The Court considers that the freedom to take part in a peaceful assembly - in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion."]
32. [3.32] – Bell J’s ruling on McDonald’s application to amend was in fact given on the same day on which McDonald’s adduced evidence in relation to publication. The Applicants therefore had no opportunity to prepare. The Court of Appeal ruling on the amendment was not given until after all McDonald’s witnesses on publication had given evidence. Although the applicants were permitted to amend their defence, this was of little use when no adjournment was granted so the applicants were not able to research and obtain new witness statements to deal with the new allegations against them.
33. [3.33] The applicants further submit that it was manifestly unfair to allow the amendment against Ms Steel on the basis of the Haringey Affidavit given that the Court accepted it that it was inaccurate in relation to her and that it could not be used as evidence against her. No other evidence had been adduced of Ms Steel’s involvement prior to October 1989.

Delay

34. [3.35] – see Application paras.363; 366-67; 368-373.
35. In fact McDonalds were aware of the contents of the leaflet four years before the writs were issued.
36. Although the Government was not responsible for the delay, it permitted McDonalds to pursue its claim despite such delay.
37. [3.36] In seeking to justify the delay the Government relies on the ‘complexity’ of the case; the ‘number of witnesses’ and the ‘need for expert witnesses’. It is ironic for the Government to rely on these factors in seeking to justify delay whilst at the same time asserting that the Applicants did not require legal aid because the case was ‘legally straightforward’ and fell ‘far short of … exceptional circumstances’.
38. [3.37] The State can be held responsible for its failure to require a fully represented and resourced party to proceed promptly, and to provide details of its case at an early stage. In fact the applicants asked full details of McDonald’s case in 1990, seeking the specifics of the claim in relation to publication. They requested details again, in September 1991, but McDonald’s did not reply to this until July 1992, and then not in detail. The applicants submit that where a party is to rely on a series of events attended by private investigators, they should be under a duty to promptly notify the opposing party of the details of this. There was no requirement on McDonald’s to notify the applicants early on of the publication evidence against them, so that they were in a position to deal with it at the trial. Bell J indicated in a number of places that he preferred the evidence of McDonald’s witnesses on publication because it was based on notes made at the time or soon after, whereas the applicants’ evidence was based on memory several years after the events. This places defendants such as the applicants in an impossible situation, since if they are not notified until several years later of the allegations against them, they cannot hope to satisfactorily challenge it except in exceptional circumstances. An example of this was the evidence of Allan Clare, which the applicants disputed in several places. However with the exception of one date, because of the passage of time, they were not in a position to prove that the evidence was false. In this one instance, Ms Steel was able to produce a postcard dated 18th June 1990 which showed that she had not been at a meeting 14th June 1990 as alleged by Mr Clare in his ‘contemporaneous’ notes. This was a rare and lucky example where many years after the event the applicants were able to disprove and discredit false assertions made by McDonald’s witnesses.
39. [3.37] lines 4 – 9: The Respondent has identified the burden of having to conduct a complex and extended pre-trial process. The burden falls much greater upon the Applicants who had been denied Legal Aid. With reference to the comment ‘the complexity of the trial of the issues raised (in particular) by the Applicants’, the applicants note that it is the claimant that raises the issues to be addressed at trial. The Applicants had no option but to defend each and every issue, particularly as the burden of proof fell on them alone. As argued elsewhere a major cause of the unfairness inherent in this case was the huge range and scope of issues the claimants were allowed to raise.

Burden of proof and the assessment of the facts.

40. [3.39] The applicants accept that the fact a court does not decide as a party wishes cannot of itself indicate any unfairness in the hearing, but note that the converse applies and the fact that the Court has looked into and decided certain issues against the applicants does not of itself indicate that the Courts were fair, a suggestion made in a number of instances by the Government. The substance of the applicants’ allegations are not that the Judge decided against them, but rather that he placed a very strict standard of proof in relation to the issues that the applicants had to prove (nutrition, food safety, unions etc), whereas in relation to the publication issue, the one issue where legally the burden of proof should have been on McDonald’s, he accepted unsubstantiated and disputed assertions made by McDonald’s and required the applicants to show why such assertions were false (e.g. attendance at the London Greenpeace fayre, where the Court of Appeal accepts there was no evidence that the applicants were present at the fayre, [see Court of Appeal p79G – 80C], yet the Judge states he was satisfied that that both applicants attended and that Ms Steel was therefore being evasive in not accepting that she had attended).
41. [3.40] Whilst clearly the judgement was substantial, this does not mean it cannot be challenged in any way. The applicants submit that as set out in Application pages 34-43, the sub findings of fact in relation to the ‘libellous’ issues were sufficient to support the truth of the statements in the leaflet, and it was overall findings and the construction of meanings which led to them losing on a number of the issues. However in relation to the publication issue in particular, the applicants submit that the domestic courts did not apply the required standards to ensure a fair trial. The trial judge accepted mere assertions put forward by McDonald’s, without requiring proper evidence (examples above and Application paras 374, 375). The applicants faced an impossible challenge to disprove the findings in the Court of Appeal, as the Court refused the applicants request for McDonald’s to produce a list of transcript references of evidence supporting the findings, and in the alternative also refused to allow the applicants sufficient time to go through the entire transcripts of publication evidence in court to show that the evidence simply did not exist.
42. [3.41] The respondent misconceives the applicants’ case, which is that domestic law, in requiring them to prove the truth of numerous complex issues without legal aid or assistance, deprived them of their rights under Art 6 and 10. The individual findings referred to by the applicants are examples of this. They are necessarily detailed, but that is because the case was so involved and complex. Reference to the underlying sub-findings of fact demonstrates the colossal and almost impossible burden of proof they faced as two ordinary members of the public engaged in having to defend freedom of speech and the public interest with no Legal Aid.

Failure to require labelled exhibits.

43. [3.42] – See Application para.375. The Government’s summary is inaccurate
44. [3.43] – The Respondents categorisation of this issue as at it’s very highest causing ‘a certain amount of confusion’ is plainly wrong. The factsheet was the foundation of McDonald’s claim, it was not some peripheral issue. There were substantial differences between the factsheet and the A5 leaflets, the A5 leaflet being much shorter, not containing all the allegedly libellous statements, nor most of the cartoons/graphics which had influenced the Judge’s decision on the meaning of the factsheet. Further, the version of the factsheet produced by Veggies had been amended to comply with McDonald’s requests, and therefore could not have founded the libel claim.
45. The issue of labelling was particularly important in relation to the alleged publication on 16^th October 1989, the only date on which McDonald’s alleged either defendant directly handed out the factsheet which was the subject of the action. Here the original statement made by McDonald’s witness merely alleged he had seen Ms Steel hand out ‘leaflets’, and it was only in 1996 that it was alleged to be the factsheet complained of (see Appl para 367). Inspection of the collection of leaflets obtained by McDonald’s revealed a copy of the A5 "What’s Wrong with McDonald’s?" leaflet dated as having been collected on the 16^th October 1989, but no such dated copy of the factsheet which was the subject of the action.
46. There was a very real risk of wrong conclusions being drawn, prejudicing a fair trial on these key facts.
47. The Government appears to misunderstand the Applicants’ complaint. The Applicants did not ask the judge for McDonald’s to be ordered to label the leaflets during the course of the trial. The applicant’s complaint is that although McDonald’s witnesses claimed that they had obtained copies of the factsheet on certain dates, no copies had been preserved which were labelled with the date and place of collection. Considering that investigators notes merely referred to ‘What’s wrong with McDonald’s leaflets’ this left substantial room for error when they later claimed they were referring to the factsheet (which as the applicants’ witnesses testified had last been reprinted in early 1987, had been saved for specific enquiries rather than widespread distribution, and was in fact almost out of print by the time of infiltration of the group). Given that other leaflets collected at London Greenpeace meetings and events by investigators or McDonald’s witnesses had been so labelled, the applicants submitted that McDonald’s should not be able to simply assert that they obtained copies of the factsheet being distributed on certain dates, without producing those copies in court. This certainly was raised with the judge on a number of occasions – for example day 305 page 33 and 306/38/24 – end Appendix 65].

Use of enquiry agents after the issuing of writs.

48. [3.45] The applicants in fact assert that enquiry agents infiltrated London Greenpeace until May 1991.
49. [3.46] The State was responsible for the use to which the evidence of the inquiry agents could be put. The state could have disallowed the case on the basis of the unfair advantage gained by McDonald’s in keeping infiltrators inside the group after service of the writs. But at minimum the state should have ordered that all the reports submitted by the agents and agencies to McDonald’s should have been disclosed to the applicants to allow them to make submissions to the trial Judge on their contents and any privileged information revealed to have been obtained from the applicants.
50. [3.47] The issue of the purpose of spies remaining in the group after service of writs was never properly investigated. The Government is wrong to state that the company received no reports after service of the writs, in fact the evidence of Mr Nicholson for McDonald’s was that they received reports until January 1991 (Day 249 page 63 [Appendix 66]). At no point were McDonald’s ordered to disclose the reports made by agents after the service of writs. The applicants pressed for the disclosure of these reports, and for records of when the contract between McDonald’s and the enquiry agents had been terminated, however these requests were refused. There was no evidence that the agent who stayed in the group until May 1991 did so because she ‘had become sympathetic to the group’s cause’.
51. [3.48] It is incorrect to assert that the Applicants ‘had a full opportunity to reply to that evidence, and to cross-examine witnesses as they saw fit’. McDonalds did not disclose the reports of the relevant enquiry agents nor did they call to give evidence the agent who remained in London Greenpeace until May 1991. Further the applicants submit that if indeed there was ‘no evidence that McDonald’s sought or received any forensic advantage from their continued presence’ (in fact Ms Steel testified that she had been asked questions about how they intended to fight the case) this was only because the trial Judge refused to order disclosure, thus preventing any analysis of whether in fact there was any forensic advantage gained, instead merely accepting McDonald’s word that it had not happened. As stated above, the applicants’ applications for disclosure, which might have revealed the truth, were refused.

Disclosure of the enquiry agents’ notes.

52. See Application – paras 379 – 385
53. [3.50] The Applicants make the following observations:
1. It is of course accepted that McDonald’s is a private company, but it is for the Courts to control legal proceedings so as to ensure compatibility with Article 6 and 10 of the ECHR. The background to this aspect of the case is important. When the applicants started this case they had no idea what the rules of disclosure were, nor what disclosure they were entitled to. It was therefore difficult for them to apply effectively to the court for pre-trial and early trial disclosure. What was needed in such circumstances was effective control by the courts, including the imposition of sanctions, to ensure fairness. That did not happen. The reality is that, knowing the applicants were unrepresented and unfamiliar with the law, McDonald’s were allowed to take advantage of the situation by not making full disclosure.
2. the matter had been brought to Bell J’s attention on several occasions;
3. The applicants submit that an appropriate sanction for the late disclosure would in fact be for the entire evidence of the private investigators to be excluded from the case. It was no mere accident that McDonald’s had failed to disclose the notes, they had actively deceived the applicants and the court as to the existence of the notes (see Appdx 54 in particular letters dated 6^th & 25^th October 1993), this can only have been to gain an unfair advantage.
4. the Court did not act promptly. The applicants applied for the agent’s notes in 1993, and on several subsequent occasions. McDonalds disclosed some notes of enquiry agents after the agents had given evidence in 1996 (see Appdx 54), when the applicants could only make very limited use of them.
5. [3.53] Bell J did not look at the uncensored notes. He simply allowed McDonalds to decide what was and was not relevant. The applicants submit that allowing an interested party to make the decisions in this way is unfair, effectively allowing them to manipulate the evidence. As noted in para 385 of the Application, after the trial had concluded the applicants obtained from McDonald’s a further report, which had been withheld during the trial, which stated that "Morris has attended Greenpeace meetings but is not an active organiser". This clearly would have been of assistance to Mr Morris in meeting McDonald’s case during the trial, yet it was not disclosed to the applicants. The applicants submit that once a decision was taken to proceed with legal action against the applicants, McDonald’s should have been under a duty to promptly disclose all the notes of private investigators to enable a level playing field for the applicants. There is no reason why disclosure of the investigators notes would jeopardise McDonald’s case, unless they showed that the applicants were not responsible for publication of the leaflet, in which case their disclosure was vital to prevent a miscarriage of justice.
54. [3.53] The summary of the applicant’s complaint is not entirely accurate. The entire series of notes should have been disclosed to enable the applicants to make use of those parts which may have assisted them, including revealing the comparatively minor part the anti-McDonald’s campaign held within the activities of London Greenpeace, and the nature and extent of the applicants’ involvement in the group. This was particularly important given the fact that McDonald’s case against the applicants was based (with the exception of one instance of alleged direct handing out of the leaflet) on their involvement in London Greenpeace. It is wrong for the Government to suggest that the Judge would have ordered the disclosure of any relevant material had there been any in the notes, as the judge had not seen the undisclosed notes, so he was not in a position to consider whether they were relevant. Furthermore, despite the applicants’ requests McDonald’s were never ordered to reveal the total number of investigators who had attended London Greenpeace meetings or events, or how many meetings they attended, therefore the Judge was not in a position to weigh the Applicants reported involvement against the wider picture of the group’s overall activities.
55. [3.54] The Respondent submits that this is not one of those ‘exceptional cases’ where a contracting state is required to provide civil legal aid. The Applicants reply that if the longest ever trial in English legal history (civil or criminal) is not exceptional, then it is difficult to see what is. The mere fact that the applicants survived until the end without giving up is no indication that they were able effectively to present their case. It is not just that the applicants were unrepresented – although in a case of this size and complexity that is an obvious breach of the equality of arms principle – it is that in addition the law placed the burden of proof on all substantive issues on them. This put them at an impossible disadvantage. It is very much their case that if they had been provided with a degree of legal assistance, and/or the burden of proof had been more flexible, or more flexibly applied to require McDonald’s to establish that some or all of the allegations they complained about were false, the outcome would have been different. And the outcome as it stands is that each applicant owes McDonald’s many thousands of pounds which they have no means of paying.

Article 10.

56. [3.57] It is accepted that Freedom of Expression under Article 10 is not absolute and that Article 10(2) provides the right to reputation is a ‘legitimate aim’. It is always necessary, however, convincingly to demonstrate that any measures pursued in protection of such a legitimate aim are (a) prescribed by law; and (b) are necessary in a democratic society and proportionate to the legitimate aim pursued. It is the applicants’ case that taken together the matters complained about in this case do disclose an interference with their Article 10 rights that cannot be and has not been, shown to be necessary and proportionate by the respondent.
57. The inflexible rule that reputation is to be presumed means that there is no scope for balancing the right to reputation and the right to freedom of expression. As a result there is no analysis of the reputation actually in issue. So for example in this case there was no analysis of McDonald’s reputation. This is highly material since McDonald’s is a corporation whose reputation is largely an artificial construct built on aggressive and unsolicited marketing.
58. [3.58] McDonalds did initially seek an injunction in its Statement of Claim. The application for an injunction against the applicants was not ultimately pursued, however, the 3 other co-defendants are legally bound not to repeat any of the criticisms made in the factsheet, even those proven by the applicants at their trial, and the threat of an injunction has never been removed. There is nothing to prevent McDonald’s in the future seeking an injunction based on the findings in the applicants’ case.
59. [3.59] The respondent seeks to isolate the applicants claims under Article 6 & 10 by arguing that where matters are compatible with Article 6 there is no basis on which they could separately breach Article 10. However this is misconceived. The factors which bear on the complaints in so far as they arise under Article 6 are not the same as the factors as they relate to Article 10. For example, it may be legitimate for the respondent to advance financial policy reasons to defend the non-availability of full legal aid in defamation proceedings as an Article 6 issue, but these reasons do not carry the same weight when considered under Article 10 (2). Moreover it is the interrelationship of Article 6 and 10 that is crucially important. For example, it may be that where legal aid is fully available there may be some circumstances where placing a burden on the defendant to prove the truth of a matter is not in breach of Article 6 or 10. However, the combination of no legal aid or representation and then placing the burden on the applicants to prove the truth of all matters in the longest trial in English legal history is a breach of both provisions.
60. The respondent seeks to argue that the appropriate balance in relation to the fair trial rights of all is achieved by dispensing cases within a reasonable time and the provision of legal aid in the most deserving cases. That may be so, but the fact is that there was a blanket prohibition on the provision of legal aid in the applicants’ case – i.e. even if objectively speaking the appropriate authorities had considered that fairness under article 6 required the provision of legal aid or assistance in the applicants case, they could not have granted such legal aid or assistance. The applicants article 6 rights did not ‘find their expression in the rules governing the allocation of legal aid’ because the rules did not provide for the provision of legal aid at all, whatever the circumstances.

The burden of proof.

61. [3.65] The allocation of the burden of proof on the defendant in defamation proceedings does of itself constitute an interference with the right to freedom of expression guaranteed by Article 10. In English law there is a restriction on defamatory expression unless for example, the defendant can prove that the expression is true. The requirement that the defendant prove the truth of the speech is an interference and/or a restriction on the defendant’s right to freedom of expression. If the defendant is not confident that s/he will be able to prove to the satisfaction of court, in accordance with rules of evidence, the truth of the allegation then his/her speech will be restricted. The same defendant may not however be deterred from the same expression if the burden of proof is on the claimant as is the case in other jurisdictions.
62. [3.66] The Government’s assertion that the function of the burden of proof is to operate as a ‘tie-breaker’ is incorrect. Importantly, however, it ignores the practical implications of the allocation of the burden of proof and in particular its chilling effect [see e.g., Libel and the Media, The Chilling Effect, Barend et al., p.32; 195-196].
63. [3.67] It is unsustainable to suggest that the allocation of the burden of proof is ‘analogous to a rule of domestic law governing the admissibility of evidence’.
64. [3.68] English law assumes that defamatory allegations are untrue. There is no justification for such an assumption. The Government must demonstrate that such an assumption is necessary in a democratic society and proportionate. Because English law assumes that defamatory allegations are untrue a defendant is therefore required to assert and prove that the defamatory allegation is true. A claimant is not required to assert that the defamatory allegation is untrue despite the fact that the claimant will (almost invariably) be best placed to know (and therefore prove) the truth or untruth of an allegation.
65. The Respondent submits that those who assert certain facts necessarily bear the burden of proof. However, the claimant is a public figure which asserts and promotes itself as a positive force in society. London Greenpeace, in the traditional manner of campaigners, were responding to such assertions over matters of great public interest and concern.
66. [3.76-7] The Respondent recognises that its defamation laws have a chilling effect on freedom of speech in relation to criticisms of governmental and related bodies, who are therefore excluded from suing their critics. Such laws clearly have the same chilling effect in relation to criticism of other powerful bodies (e.g. corporations). As it is accepted that it is not in the public interest that criticism of governmental-type organisations be chilled, then it is submitted that the same must be true for an organisation like the McDonald’s Corporation. The Respondent has failed to prevent the chilling of speech on matters of public importance by, for example, restricting the claimant’s right to sue for defamation, reversing the burden of proof, allowing a ‘reasonable belief’ defence or insisting that malice be proven.
67. The Government gives no reasons for its assertion that it would be ‘quite unreasonable, if not impossible, to expect a plaintiff to prove the negative that a given allegation is untrue’. It is both reasonable and possible for a claimant to prove (on the balance of probabilities) that an allegation is untrue. It is to be remembered that in many instances, including many in this case, the truth or otherwise of the matter complained about is within the claimant’s knowledge. It is submitted that it cannot be in the interests of free speech for a wealthy claimant to be permitted to sit back and require impoverished and unrepresented individuals to prove the truth of such matters, safe in the knowledge that if the impoverished and unrepresented individuals fail in their task the law will enter judgement against them.
68. The Government also errs in asserting that ‘it is the defendant in a libel claim who has chosen to publish the statements which have caused damage to the reputation of the plaintiff’. Such damage is assumed. The claimant is not required to prove that any damage has in fact occurred.
69. The current allocation of the burden of proof is a fundamental interference with the right to freedom of expression.
70. [3.69] The Government has failed to provide any basis for its assertion that the allocation of the burden of proof on the defendant in defamation proceedings is ‘a fair and necessary procedural rule’. It is in fact neither ‘fair’ nor ‘necessary’. Further, the allocation of the burden of proof on a defendant is not in pursuit of the asserted legitimate aim. The two factors relied on by the Government, viz., (i) determining a legal dispute when the evidence is inconclusive or lacking; and (b) legal certainty can be achieved regardless of on whom the burden of proof lies.
71. Rather than promoting ‘legal certainty’, the opposite is true in this case. A clear example [See Application, Appx 18] is the statements of the 3 co-defendants who previously been required to ‘apologise unreservedly’ for the ‘falseness’ of the allegations in the factsheet – many of which were subsequently found to be true or fair comment.
72. [3.71] The applicants submit that publications by groups such as London Greenpeace should clearly be viewed as part of the press and media, those handing them out are entitled to any protection available to other more established media organisations and their distributors. To deny this protection to members of the public, especially when they are clearly motivated by concern for the public interest (rather than, as in the case of much of the mainstream media companies, in sales and profits), is to discriminate against the public’s right to create and participate in their own media and public discourse generally.
73. Such independent media is itself a form of ‘balance’ against one-sided marketing by the claimant. The respondent has failed to show why strict defamation laws that protect the claimed reputation of wealthy claimants over the free speech of impoverished campaigners, by requiring the latter to prove the truth of any matter complained about, is necessary or proportionate. Significantly it is not suggested, nor could it be, that McDonald’s had no other way of protecting its’ claimed reputation. It had many avenues and ample resources for this.
74. [3.72] The Government fails to recognise the importance in a democratic society of leafleting and campaigning by interests groups, particularly those which seek to provide alternative information about hugely powerful multi-national corporations such as McDonalds. Frequently such groups raise issues which are not covered by mainstream media, or are covered only peripherally, bringing to public attention matters which often later become mainstream views.
75. [3.73] Regarding Thorgeisen being a kind of ‘commentary on the complaints of others’, the factsheet nutrition section for example is centred around ‘accepted medical fact, not cranky theory’ linking a high fat, high salt etc diet to heart disease and cancer, i.e. clearly relying on and relaying the views of the scientific community.
76. The government is wrong to suggest that ‘at its highest there was some evidence that the first applicant had seen a film hostile to McDonald’s entitled Jungleburger’. During the course of her evidence the first applicant referred to having seen a wide variety of reports, documents and other media which made similar criticisms to those made in the factsheet. This evidence was accepted by the judge in relation to the Counterclaim as evidence that the applicants had believed in the truth of the factsheet. Some of these documents were appended to the Application.
77. [3.74] It is wrong to assert that the outcome of the proceedings would have been no different had the burden of proof been on McDonalds. The applicants case is that clearly it would have been. Had the burden of proof been reversed, or qualified or relaxed, it could be wondered whether the court would have required 100 days of evidence on employment conditions, and 63 days on matters of diet and ill-health, or found against the defence on diet and cancer, or on the claimant’s opposition to unionisation (and other key issues). The Government is unable convincingly to establish that it was necessary/proportionate for the burden of proof to be on the Applicants.
78. Further, the applicants case is not merely that the burden of proof should have been reversed, but is also alternatively about the level of proof needed before a person is entitled to make a statement e.g. should the applicants have had the burden of proof of calling expert testimony to establish a causal relationship between diet and heart disease and cancer, or should they have been entitled to rely on publications such as those produced by the World Health Organisation (see Appl para 277)
79. The Respondent appears not to put forward any arguments against the Applicants’ submissions concerning the lack of a defence of ‘genuine and not unreasonable belief’. Hence we refer the court to the Application, paras 200-223.

The ability of multinational companies to bring defamation claims.

80. [3.77] See Application, p.84. As also submitted above, it is not consistent or in the public interest that ‘the free expression of criticism that is fundamental to the democratic process’ be restricted to scrutiny of political parties and governmental bodies. Politics and democracy is about all aspects of life and society. Powerful and influential corporations like McDonald’s must equally expect to be subjected to free expression of criticism on matters of public interest. The applicants submit that the fact that a private corporation such as McDonald’s ‘does not put itself forward for democratic election’, when its activities clearly affect large sections of society, is even more reason to allow wide ranging and legitimate criticism.
81. [3.78] The court in Fayed v United Kingdom very properly recognised that the ‘limits of acceptable criticism are wider’ when applied to the world of business. Yet the Respondent Government has not stated or demonstrated how its laws guarantee such wider limits for criticising business, and in the current case failed to protect the Applicants’ right to make such wider criticisms – for example by, inter alia, restricting the claimant’s right to sue for defamation, reversing the burden of proof, allowing a ‘reasonable belief’ defence, insisting that malice be proven or requiring proof of damage or loss suffered.
82. Regarding whether London Greenpeace is a body ‘representing the public interest’, the Applicants submit that campaigning organisations have an important, influential and recognised role to play. In the early 1970s London Greenpeace was virtually alone in the UK in criticising and opposing the dangers associated with nuclear energy production and radioactive waste. Now almost everyone accepts this is true. Campaigning organisations and their media (magazines, leaflets etc) are recognised by the public for the role they play in scrutinising and challenging practices in society affecting people’s lives and their environment. Indeed human progress often starts with a few, often ignored, persecuted or laughed-at individuals and groups of determined campaigners, develops into a movement or current of opinion, and eventually becomes publicly accepted mainstream views. Examples include the following campaigns and movements: suffragettes (votes for women), opposition to slavery, trade unions and workers’ rights, civil rights anti-racism movements (e.g. in the USA), environmental campaigns, those opposing the tobacco industry and so on. Campaigning groups like London Greenpeace require and deserve specific effective protection measures because they are generally ordinary members of the public, are vulnerable and have less resources to put over their views than other media and public bodies, less resources to defend themselves if sued, and they often scrutinise otherwise unaccountable powerful interests.
83. Whilst the factsheet is strongly worded in places it is wrong for the government to suggest that the applicants and London Greenpeace do not apply standards of fairness, balance and objectivity in relation to those they may criticise. As stated previously (Application paras 241-242) all the criticisms in the factsheet had been made separately elsewhere before the factsheet was produced, there was and is absolutely no evidence that those people who wrote the factsheet deliberately invented allegations to harm McDonald’s. It is significant that McDonald’s failed in the substance of the counterclaim because the court found that the criticisms in the factsheet were genuinely held.
84. [3.79] Regarding the last sentence, the Respondent is entitled to its political opinion on the claimed positive effects of business on society, but the Applicants are entitled to their right to disagree.
85. [3.80] It is not accepted that it is necessary to define and distinguish companies or commercial organisations. The Applicants submit that regardless of the size of the company, where their activities are having an effect on a sector of society, people should have the right to criticise and express concerns. But clearly, as a multinational corporation McDonald’s does have considerable influence and effect over matters affecting the public.
86. [3.81] The Government’s submission is premised on the fact that in English libel law damage to reputation is assumed. The Government has failed convincingly to establish why such an assumption is necessary/proportionate in a democratic society.

Matters already in the public domain.

87. See Application, p.88 et seq. The respondent fails to deal with the Applicants submission that in this case they had an uncontestable ‘genuine and not unreasonable belief’ in the statements objected to by McDonald’s, which should have provided a successful defence to the action.
88. [3.84] The Government is wrong to state, in its observation regarding the sources of information about McDonald’s, ‘those from other sources that were considered at the trial and found not to support the allegations that the applicants made against McDonald’s’. The Judge found that they were sufficient to support the applicants belief in the truth of the contents of the factsheet. However, because English Libel law requires primary first hand evidence to prove allegations made, these supporting documents were treated as inadmissible in relation to proof of the allegations in the factsheet. But this is precisely the point that the applicants complain about. If members of the public are not allowed to rely on information in articles, reports or broadcasts (no matter how authoratative) in support of statements and criticisms they make, this will clearly deter people from speaking out on issues which concern them.
89. In relation to admissions made during the trial, obviously these were made after the factsheet was produced, however many related to events and practices that took place before or at the time of its production.
90. It is interesting to note that the Government here states ‘the courts found in favour of McDonald’s on most issues’, implying that the allegations were without foundation, yet when arguing that the applicants had a fair trial (para 3.12) seems to give the impression that the applicants had a considerable degree of success, which simply would not be possible had there been no basis for the allegations in the factsheet.
91. [3.85] The Respondents misrepresent the Applicants case as being that the claimants ‘should sue all those who publish [an allegation] or none at all’. In this case the fact is that McDonald’s did threaten legal action against Veggies, but only complained about part of the factsheet, and then made an agreement allowing the continued distribution of the rest of the criticisms. In such circumstances it should be reasonable for people to assume that they accept the rest of the factsheet as true or fair comment. This, the Applicants submit, fails to deal with the Applicants arguments, including the lack of a ‘genuine and not unreasonable belief’ defence, and also including the fact that the agreement with Veggies, the main distributors of the factsheet, ensured ongoing continued mass distribution of the very document they were seeking to suppress.
92. [3.86] The point that the ‘threat of legal action was enough to secure withdrawal of criticisms’ only reinforces the Applicants argument that current defamation laws and procedures fail to provide the right balance. In addition to the 3 co-defendants in the current case, other disturbing examples of how the laws are used to stifle dissent also came to light during the case. For example, the Bournemouth Advertiser was forced to apologise to McDonald’s despite its allegations regarding animal welfare being true [see Bell J p465]. Both Harriet Lamb and Juliet Gelately, who testified for the defence in the current case, testified in the witness box that they had been sued by McDonald’s and felt they had had no option but to apologise due to the unfairness and expense of the UK defamation laws – they both said that they still stood by their allegations.

Fact and comment.

93. 3.89 It is important that the Court consider the Applicants’ complaint in the context of campaigners handing out leaflets on issues of undoubted public importance, particularly where they are responding to the claims and marketing efforts of a company like McDonald’s.
94. [3.90] The Applicants did attempt to raise the defence of fair comment. They may not, however, have pleaded it properly. They also attempted to raise it during closing speeches, but did not really understand the legal difference between fact and comment, particularly not when the two are intermingled, and were said to be affected by cartoons and graphics. This reinforces the very real difficulties faced by the Applicants by the lack of legal representation.
95. The formal distinction between facts and value judgments is less pronounced in traditional ‘political’ or ‘campaigning’ literature. But such literature is the life blood of democratic traditions and popular involvement and engagement in political processes generally – it is more likely than most other types of topical literature to contain polemic, hyperbole, satire, graphic imagery, strong and partisan but genuinely-held opinions. Such literature is entitled to effective protection. The factsheet contains some of this traditional type of language (e.g. the cartoon of a cow and worker squashed in a bun; the McDollars, McGreedy, McCancer etc graphics; the linking of McDonald’s with cash crops, economic imperialism and hunger in poor countries etc) and was penalised for it rather than afforded protection.
96. [3.91] The applicants of course do not accept that there had been no careful research, nor even that all the facts were vigorously disputed by McDonald’s (for example prior to this case McDonald’s seemed only too happy to be known for its anti-union practices e.g. see p397 of John Love’s book, Behind the Arches [Appx 28], which is promoted by McDonald’s as an accurate and useful history of the company). As stated elsewhere the applicants consider that leaflets such as the factsheet provide some balance to the constant marketing and propaganda efforts of corporations, which have no obligation to present a balanced picture themselves.
97. The Respondent accepts that ‘statements of fact and purported comments were intermingled to such a degree that they were indistinguishable’. This is often the case with popular rather than professional speech. The public’s right to use popular and ‘political’ speech patterns/idioms/techniques is entitled to recognition and protection.

Meanings.

98. [3.93] It is unclear what the Government means when it states that ‘It is difficult to see why domestic law or the convention should be concerned with anything other than practical reality so far as evaluating the meaning and effect of a defamatory statement is concerned’. This suggests that there is always one clear meaning to any statement made. In reality there is never just one meaning, all collections of words will mean different things to different people, depending on upbringing, life experiences and a number of other factors. This is shown clearly by the fact of the disagreement between the Court of Appeal and Bell J over what the nutrition section meant. For this reason it is submitted that the least defamatory meaning possible should always be selected, in order to protect freedom of speech.
99. It is recognised that comment only needs to be fair, not true. Political and campaigning speech is often characterised by ‘intermingled’ comment and fact (as the respondents have accepted in this case), yet there was no ‘innocent construction’ or ‘fair meaning’ defence available to protect such speech. This contributed greatly to the confusion over the meaning in the two longest contested issues; employment and nutrition, in which the Court of Appeal overturned the rulings of the trial judge, but left one issue (diet and cancer) unsatisfactorily unresolved.
100. [3.94] The Applicants withdrew the grounds of appeal referred to in paragraph 3.94 of the Government’s Observations because they had no legal assistance and were unable to cope. The applicants invite the court to consider the following extracts of dialogue during the Appeal, regarding Bell J’s original meaning of the nutrition section - as approved by the Court of Appeal during the trial. Bell J later amended his meaning but at the final appeal the Court of Appeal declared that his amendment was not permissible as he could not go against the earlier Court of Appeal decision. And nor could they, they declared. They would clearly have amended the ‘meaning’ themselves and found in the Applicants favour. So the ‘approved meaning’, that no-one agreed with, had to stand and the Applicants lost the issue and possibly on balance the whole case on the strength of it. Examples of dialogue [3^rd February 1999 See Appendix 67]:

Lord Justice Pill: ‘The Defendants do not believe it. The judge himself did not believe it. You [Richard Rampton QC] do not believe it. And we are stuck with it.’... [p51]

Richard Rampton: ‘What does the meaning mean? The meaning means, I would say, just what it says.’ [p58]

Mr Justice Keane: ‘..are you not opening up...this particular can of worms as to what actually does the Court of Appeal’s approved meaning mean?’ [p67]

101. [3.95] The applicants submit that in this case the process of determining the so called ‘ordinary meaning’ of the words complained of was an unfair step which merely complicated the proceedings, substituting the set of words in the factsheet for another set of words which could equally mean different things to different people. The applicants do not suggest that an artificial meaning should be chosen, merely the least defamatory one which someone could reasonably hold as the meaning. (see for example Application para 286)
102. The respondents invoke the margin of appreciation but the applicants submit that it is well recognised that the margin of appreciation is narrow where free speech is at issue. In relation to meaning, no re-assessment of the facts is necessary, merely a comparison of the factsheet [Appendix 1] with the meanings attributed by the Judge, and those contended for by the applicants, as set out in the main application (pages 100-126).

Appropriate assessment of facts.

103. See Application, paras 316-317, supported by 75 – 115

Damages.

104. See Application, paras 318 – 327
105. The Government has failed convincingly to establish that it was necessary in a democratic society / proportionate to award McDonalds £60,000 (reduced to £40,000) to compensate it for damage to its reputation. McDonalds adduced no evidence that it had, as a result of the leaflets complained of, suffered any financial loss. It is significant that the sums awarded bear no relation to any loss claimed by McDonald’s – none was claimed – nor do they bear any relation to the applicants ability to pay. The sums are so beyond the applicants’ means that in reality if ever enforced they would be bankrupted.

Relationship of the present application to S and M v. UK.

106. The Applicants repeat the submissions made in their letter to the Court, dated 26 July 2002 (copy attached). The context of the present application is wholly different from the earlier application. The Court is, unlike the Commission, now in position to appreciate the size and scale of the proceedings brought against the Applicants; moreover the arguments raised in this application are different.

Conclusion.

107. For the reasons set out above and in the applications the applicants respectively invite the court to reject the conclusions drawn by the government at paras 4.1 and 4.2 of its observations.

64 Trial Transcript Day 97 page 2 line 39 on, & page 5 line 14 on.

65 Trial Transcript Day 305 page 33 and Day 306 page 38 line 24 to end.

66 Trial Transcript Day 249 page 63 - 66