The battle of the burgers moved yesterday to the courts, with a judge agreeing evidence should be heard in public.

Lawyer Mark Diel, representing Grape Bay Ltd. -- banned by law from opening a McDonald's in Bermuda -- kicked off evidence before Puisne Judge Vincent Meerabux.

And he outlined the four-pronged argument from Grape Bay, controlled by former Premier Sir John Swan and UBP backbencher Maxwell Burgess, against the Prohibited Restaurants Act, which became law this year after a controversial path through Parliament.

He told the court that Grape Bay's contention was that contracts with people in Bermuda and overseas were property under the Constitution -- which says no-one can be deprived of property without compensation.

Mr. Diel added: "The value of these contracts is millions of dollars for Grape Bay Ltd. alone -- that does not include overseas companies. The liability is unquantifiable, but vast.'' Mr. Diel said contracts involved a firm called Warner Group who had a contract with McDonald's in the US. The Warner Group contract had been assigned to Grape Bay Ltd. -- set up for the sole purpose of operating a McDonald's -- and that Sir John had personally guaranteed $3 million to underwrite the business plan.

Mr. Diel said Mr. Justice Meerabux had to decide if McDonald's was a restaurant under the terms of the Prohibited Restaurants Act.

He added that if that was found to be the case, the next question would be if contracts relating to the bid counted as property -- which is protected under the Constitution.

And he quoted legal precendent which said that Constitutional matters should "not be interpreted in a narrow and legalistic way, but broadly and purposefully...this is particularly important in relation to human rights.'' Mr. Diel also asked Mr. Justice Meerabux to consider whether a ban on restaurants with a foreign flavour was in the public interest and whether the terms of the Act were in line with the Constitution.

He said that it was not necessary to rule the Act as illegal and strike it from the books.

But he said it could be asked if the Act could be saved by adding words excluding those with existing property rights.

Mr. Diel added: "It it can be saved by inclusion of these words, it cannot apply to the applicant, so the application succeeds.'' He told the court that one argument by Grape Bay was that the legal definition of a restaurant -- a pub, tavern or other place selling food and refreshment for profit -- was inapplicable.

Mr. Diel said: "The intention of the applicant is to operate a McDonald's restaurant. It's clear that the applicant will not be operating a tavern or public house.'' He added that the act outlawed anything which "could reasonably suggest a relationship'' with any overseas establishment.

But he said this could lead to "uncertainty, friction and confusion in the system'' by causing problems for airlines, cruise ships and even drinks importers.

He contended the Act could conceivably halt new airlines and cruise lines coming to the Island, as well as inhibit people's ability to set up new wholesalers and retailers in Bermuda.

"How on earth can a soft drink distributor set up here -- it's impossible if you give the Act the wide definition,'' he asked.

The court hearing came after Mr. Justice Meerabux ruled he would hear submissions in public after meeting with Grape Bay's legal team and Attorney General Elliott Mottley in chambers.

Mr. Diel concluded his arguments yesterday and Mr. Mottley will argue the case for the Crown today.