Day 157 - 18 Jul 95 - Page 55
1
2 MR. JUSTICE BELL: No, it is 1970 2 All England Reports, page
3 609 at page 614, and the reference in Phipson is paragraph
4 22-13 at page 592. But what, as I understand it, the
5 situation is there you have a transcript of evidence which
6 in some subsequent case you are putting in as the statement
7 of the person giving the evidence.
8
9 MR. RAMPTON: Yes.
10
11 MR. JUSTICE BELL: We are not in that situation here. We have
12 heard the evidence of the witness and that is the evidence,
13 not the reduction of that to transcript form. Is that
14 right, Mr. Rampton?
15
16 MR. RAMPTON: My Lord, that is right. The transcript of earlier
17 proceedings is a pre-existing document which may well be
18 relevant to a question which arises in subsequent
19 proceedings. The transcript of the evidence given on the
20 first day which appears from the transcript on the second
21 day cannot possibly fit that bill. It is a mere record of
22 what the person said and no more than that. Put it at its
23 simplest, the evidence is the evidence. Once it has been
24 given, a record of the evidence adds nothing and could not
25 possibly be within the scope of discovery. I will develop
26 that in a moment, if I may.
27
28 MR. JUSTICE BELL: Yes.
29
30 MR. RAMPTON: My Lord, first of all, can I pass up a page from
31 Halsbury's Laws, 4th Edition Volume XIII. I pose the
32 question: What is the purpose and function of discovery in
33 a civil action? One answer might be found in paragraph 1
34 on page 2 of this volume of Halsbury's Laws:
35
36 "Meaning, function of discovery: The term
37 'discovery' in this title is used to describe
38 the process by which the parties to the civil
39 court or matter are enabled to obtain within
40 certain defined limits full information of the
41 existence and the contents of all relevant
42 documents relating to the matters in question
43 between them. The process of the discovery of
44 documents operates generally in three successive
45 stages, that (1) the disclosure of writing by
46 one party to the other of all the documents
47 which he has or has had in his possession,
48 custody or power relating to matters in question
49 in the proceedings;
50
51 (2) the inspection of the documents disclosed
52 other than those for which privilege from or
53 other objection of production is properly
54 claimed or raised;
55
56 (3) the production of the documents disclosed
57 either for inspection by the opposite party or
58 to the court.
59
60 The function of the discovery of documents is to
