Day 097 - 06 Mar 95 - Page 33

     
     1        quantities may include pathogenic bacteria.  But, in order
     2        to allay your fears that it has being alleged that E.coli
     3        is routinely found, she is suggesting that after
     4        "pathogenic bacteria" is inserted "other than E.coli", and
     5        we had better give it the number, "0157 H are routinely
     6        found in the raw meat products".
     7
     8   MR. RAMPTON:  If that is done, I shall not object to the
     9        pleading but I shall not admit it either.
    10
    11   MR. JUSTICE BELL:  Once leave is given, either in the form
    12        sought or in some modified form, you should have a period
    13        of time -- presumably you would not need very long -- to
    14        decide whether and what is admitted of the amended
    15        pleadings, and then if there is any argument about
    16        discovery I will have to decide it.
    17
    18   MR. RAMPTON:  My Lord, I cannot think that this pleading could
    19        possibly give rise to any discovery.
    20
    MR. JUSTICE BELL:  That is entirely a matter for you.
    22
    23   MR. RAMPTON:  Yes, I know.
    24
    25   MR. JUSTICE BELL:  What I am suggesting, Ms. Steel, is that we
    26        keep "pathogenic bacteria".  After that one inserts "other
    27        than E.coli 0157 H".  I would take out "the company itself
    28        states" because that is pleading evidence rather than the
    29        facts.  But otherwise you would have your amendment which
    30        is really the substance of what you have asked for, unless
    31        you want to put any further argument to me?
    32
    33   MS. STEEL:  The only thing I would say is perhaps we should
    34        change 10,000,000 to 5,000,000.
    35
    36   MR. JUSTICE BELL:  If you want to do that, I will.  There is
    37        nothing you wish to say about that, Mr. Rampton?
    38
    39   MR. RAMPTON:  No, my Lord, it seems to me more accurate.
    40
    MR. JUSTICE BELL:  I will not give reasons because what
    42        I propose to do is really being done by effective consent
    43        without prejudice to the stands on the evidence which any
    44        of the parties will take.
    45
    46        In relation to paragraph 6 the first proposed amendment
    47        under food poisoning, I will give leave to amend in the
    48        form set out in the draft, save that after the first two
    49        words "pathogenic bacteria" will be inserted "other than
    50        E.coli 0157 H", and that in the second sentence the words 
    51        "the company itself states" will be removed as a pleading 
    52        of evidence rather than of material fact. 
    53
    54        Neither of those amendments change the substance of the
    55        case which the Defendants were seeking to put by their
    56        proposed amendment.  I will also change "10,000,000
    57        bacteria" to "5,000,000 bacteria" which, on the parts of
    58        transcript I have been referred to, appears more accurately
    59        to reflect the evidence of Mr. David Walker upon which that
    60        sentence of the proposed amendment was based.