Day 190 - 23 Nov 95 - Page 13


     
     1        That is taken from an article in the Harvard Law Reviews,
     2        as one sees from the note 63.
     3
     4             "The scope of the agent's authority as regards
     5             the making of admissions may be much narrower
     6             than that of his authority to make contracts or
     7             dispose of property, for in the latter cases the
     8             interests and possible losses of third parties
     9             must more directly be borne in mind.  Thus in
    10             the absence of express authority to make the
    11             communication during which an admission is made,
    12             not only must the transaction about which the
    13             admission was made have been one upon which the
    14             agent was concerned on the principal's behalf at
    15             the time of the admission, but also it must have
    16             been within his authority to make admissions, or
    17             at least to effect the relevant communication,
    18             and this may be difficult to establish.  Beyond
    19             this the principal will not be bound.  Authority
    20             to make admissions is a type of implied
    21             authority, but the implication should be made
    22             with caution.  Apparent authority, strictly
    23             so-called, is not here relevant...."
    24
    25        My Lord, we would accept that it has nothing to do with it.
    26        I go on to next complete paragraph:
    27
    28                  "Authority to make admissions regarding
    29             past transactions will rarely be inferred...."
    30
    31        I will not read the rest of that paragraph.  Then the last
    32        paragraph on this page:
    33
    34                  "The rules given above are rules of the
    35             law of evidence, under which admissions of the
    36             parties to a suit and their agents are
    37             receivable in evidence as one of the exceptions
    38             to the rule against hearsay.  But evidence which
    39             may not be received as admission may
    40             nevertheless be received by virtue of other
    41             rules of the law of evidence, e.g. under the
    42             Evidence Act 1938, and under sections 2(1), 4(1)
    43             and 5(1) of the Civil Evidence Act 1968.  These
    44             latter provisions could, for example, permit the
    45             reception of the evidence in Illustrations 2, 4,
    46             8 and 9."
    47
    48        My Lord, that is, in our respectful submission, a very
    49        important distinction in this particular instance.
    50        Section 2 of the Civil Evidence Act 1968 enables 
    51        out-of-court statements to be admitted in evidence as 
    52        though the maker of the out-of-court statement were 
    53        standing in the witness box.  Thus, in this particular
    54        case, if the Defendants had posted a Civil Evidence Act
    55        notice on either of these two interviews, then, subject to
    56        the question whether, in themselves, the contents of the
    57        interviews are objectionable on the ground of hearsay,
    58        those statements could have been given in evidence, just as
    59        the witnesses themselves could have come to court and given
    60        admissible direct evidence of their own experience inside

Prev Next Index