Day 157 - 18 Jul 95 - Page 30


     
     1        A document, of which the transcript is a document, it must
     2        be, which, could it lead us to a train of enquiry which may
     3        have the consequences of advancing or damaging either
     4        side's case?  If we are unable to take effective shorthand
     5        notes, if we were a law firm, we were legally aided, we may
     6        be able to employ someone to do that, to transcribe it or,
     7        indeed, to pay for a transcript which we cannot afford to
     8        do, whether it is œ20 or œ350 a day, but in any event from
     9        the moment the transcript goes into the hands of the
    10        Plaintiffs, we are saying that we would be entitled to it
    11        because it would contain information, i.e. a record of what
    12        was said in court, which could lead us fairly to a train of
    13        enquiry which would help us to advance or damage the case.
    14
    15   MR. JUSTICE BELL:  But you have heard the evidence.  The train
    16        of enquiry either occurs to you or it does not as you hear
    17        the evidence.  Whether or not your notes are complete, I do
    18        not see that the transcript adds anything, qua transcript,
    19        as a transcript.
    20
    21   MR. MORRIS:  If we have only something less than five per cent,
    22        maybe even one per cent, of what was said in court, down as
    23        a note -----
    24
    25   MR. JUSTICE BELL:  You have far more than that and you are
    26        hearing it.  The train of enquiry, you actually hear it and
    27        you think, surely, of a train of enquiry or you do not.  I
    28        mean, I do think there is, well, you develop your argument.
    29
    30   MR. MORRIS:  Yes.  If the argument be, could we reasonably be
    31        expected to remember or act on any train of enquiry with
    32        all the other responsibilities we have in court in this
    33        case, then I would say that if ever there was a case where
    34        a party is not able to evaluate the evidence while it is
    35        going on to any effective extent without the use of the
    36        existing transcript, then this must be that kind of case
    37        because of its length and detail and our position without
    38        resources.
    39
    40        So, I would argue that if there is any feeling that this
    41        section could apply, as I believe you indicated before that
    42        transcripts can be used as a form of evidence where a party
    43        or parties do not consider they have got an accurate
    44        recording themselves -----
    45
    46   MR. JUSTICE BELL:  No, I never said that.  The only
    47        evidence -- I mean, if need be you should -- I did mention
    48        it the other day and, obviously, whether you mentioned it
    49        or not to whoever is advising you, it had not come to the
    50        surface, but the sort of situation is where there is an 
    51        issue as to what actually happened at a trial, another 
    52        trial completely, not the trial in relation to which there 
    53        is a transcript.
    54
    55        It has been held, I believe, that the transcript of the
    56        judge's summing up to the jury in that trial was a document
    57        which could be put in under the Civil Evidence Act as
    58        evidence of a matter in issue, namely, whether evidence was
    59        given to a certain effect in the trial which is a
    60        completely different situation to where you are just

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