Day 270 - 28 Jun 96 - Page 39


     
     1        to refer to them - Ventouris v. Mountain No. 2 which is
     2        1992, volume 1 of the Weekly Law Reports at 887, and
     3        following that a judgment by Mr. Justice Rimer in the
     4        Chancery Division called Brinks Ltd. v. Abu Saleh which is
     5        1995 1 Weekly Law Reports.
     6
     7        The reason I am not going to refer to those is that the
     8        question in those cases, which in both instances was
     9        decided against the applicant, the person who wanted to
    10        introduce the evidence, the question there was whether the
    11        Civil Evidence Act notice, which was documentary in form,
    12        could introduce secondary hearsay in an underlying
    13        document. The decision in both cases was that it could
    14        not.
    15
    16        But here the underlying statement, the one which is sought
    17        to be introduced as evidence in the case, the statements
    18        were made orally and not in a document, and therefore those
    19        cases do not really matter.  Although it would be in my
    20        favour if they had been made in documents, it is a simple
    21        question of the construction of section 2 of the Civil
    22        Evidence Act 1968, which your Lordship will find in volume
    23        2 of the White Book at page 1836 at paragraph 6081.
    24
    25        The wording of the section has not changed since it
    26        enacted.  My Lord, the two subsections of section 2 which
    27        bear on this question are 2.1 and 2.3.  I will read them
    28        both.  2.1 says:
    29
    30        "In any civil proceedings a statement made, whether orally
    31        or in a document or otherwise, by any person, whether
    32        called as a witness in those proceedings or not, shall,
    33        subject to this section and to rules of court, be
    34        admissible as evidence of any fact stated therein of which
    35        direct oral evidence by him...." - and I stress that   word
    36         - "....would be admissible."
    37
    38        Then if one looks at Subsection (3):
    39
    40        "Where in any civil proceedings a statement which was made
    41        otherwise than in a document is admissible by virtue of
    42        this section, no evidence other than direct oral evidence
    43        by the person who made the statement or any person who
    44        heard or otherwise perceived it being made shall be
    45        admissible for the purpose of proving it."
    46
    47        My Lord, what that means, and it is a short point, is that
    48        to the extent that statement, the written statement of
    49        Leanne Claufine-Caston.
    50 
    51   MR. JUSTICE BELL:  Just take this slowly. 
    52 
    53   MR. RAMPTON:  Yes, to the extent that the statement of Ms.
    54        Claufine-Caston purports to record what she was told by
    55        other people, and to the extent that the defendants seek to
    56        rely on what was said by those other people --
    57
    58   MR. JUSTICE BELL:  Yes, I want to take it down, Mr. Rampton.
    59
    60   MR. RAMPTON:  I am sorry.

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