Day 057 - 29 Nov 94 - Page 64


     
     1        the Plaintiffs' Statement of Claim they are referring to
     2        there as the issues in the main action.
     3
     4   MR. JUSTICE BELL:  There is a problem there, because one of the
     5        topics which is on this very list is No. 5 "Defendants'
     6        pleadings, incorporation of some of the main elements of
     7        Defendants' witness statements".  So on the basis that what
     8        is sauce for the goose is sauce for the gander, in so far
     9        as you have brought anything in to factual issue in the
    10        case, they are entitled, are they not, at any moment to
    11        say: "Well, look you could not possibly have believed that
    12        that was true".
    13
    14   MS. STEEL:  All I am saying is I am not clear whether they are
    15        saying that what the consider to be the issues in the main
    16        action are those set out in the Statement of Claim, or
    17        those set out in our pleadings and in witness statements
    18        which go wider than what are in the Statement of Claim.
    19        For example, the Statement of Claim does not mention CFCs
    20        but CFCs have become an issue.  I am not sure what their
    21        case is.
    22
    23   MR. JUSTICE BELL:  I think it is the latter.  Is that not
    24        right?  It is the whole action; not what just may be at
    25        this moment in time in the Statement of Claim or in the
    26        Amended Defence and Further and Better Particulars thereof.
    27
    28   MR. ATKINSON:   The issues as they have arisen in this case,
    29        this main action.
    30
    31   MS. STEEL:  The point about steps of organisation is that with
    32        the exception of, I think, possibly one of them they do not
    33        refer to steps of organisation; they just refer to
    34        attendance at pickets.  If the Plaintiffs are saying they
    35        are limiting themselves to what is in those statements,
    36        then I think they should expressly state that.
    37
    38        The point about the leaflets or all the documents that are
    39        in the back of here that are alleged to be leaflets, is
    40        that they should have to say where they came from, where
    41        they were being distributed and when they were being
    42        distributed.  If they have not kept records of it, then
    43        that is their fault.  They cannot rely on it.  They know
    44        that they should keep records like that of when and where
    45        leaflets are alleged to have been distributed.  As I say,
    46        if they have not done it that is their problem.  As I said,
    47        some of them we have never even seen before.
    48
    49   MR. JUSTICE BELL:  It cannot be right that they cannot rely on
    50        them just because they have not kept a record of when and 
    51        where.  What you will be able to argue is if they cannot 
    52        say when and where and how in relation to you, in common 
    53        sense it should not be held again against you.  You can
    54        argue that and one might have to decide it.  You cannot
    55        suggest that a party is not entitled to rely on material
    56        because they did not keep a record of just how and when it
    57        came into their custody, can you?
    58
    59   MS. STEEL:  How do we know they did not create the documents
    60        themselves; I do not mean the solicitors but somebody with

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