Day 081 - 31 Jan 95 - Page 59
1 that is England and Wales, because normally as a broad
2 generality the orders of the High Court in London only run
3 in England and Wales. There are a whole load of exceptions
4 to that, but that is basically the situation.
5
6 If Mr. Clark being the subject of a writ of subpoena did
7 not attend to give evidence, the question of whether there
8 should be any penalty and, if so, what would not be a
9 matter for me; it would be a matter for the Court of
10 Session at Edinburgh, that is subsection 3. In any event,
11 any court ceased with any question of any punishment for a
12 person neglecting or refusing to appear shall not proceed
13 unless it is shown that sufficient money has been given to
14 the witness to cover the expenses of coming in and giving
15 evidence in general terms. So you have to be prepared to
16 offer a sufficient sum to cover that.
17
18 MS. STEEL: Would we have to pay that or does the court pay
19 that?
20
21 MR. JUSTICE BELL: No, you have to because you are the person
22 calling the witness.
23
24 MS. STEEL: Are there any provisions where the court can pay it,
25 does it have the power to?
26
27 MR. JUSTICE BELL: Not that I am aware of, no. The first thing
28 to do is to decide whether you, having taken your own
29 counsel and taken heed of or discarded as you wish what
30 I have had to say about the matter, actually want to call
31 Mr. Clark. If you do not, there we are. If you do, since
32 Mr. Clark is here, there are some things I would wish to
33 say to him before we consider any question of a subpoena.
34
35 MR. MORRIS: Could we just say that the point in Section 5 says:
36 "Nothing in this section shall affect the power of the
37 High Court to issue a commission for the examination of
38 witnesses out of the jurisdiction of the court in any
39 case." Does that mean that the court has the power to call
40 Mr. Clark whether or not we can afford to pay his
41 expenses?
42
43 MR. JUSTICE BELL: No. That is taking evidence on commission
44 which means someone actually takes the evidence, not me,
45 wherever the witness is.
46
47 MR. MORRIS: The second part (B) admissibility of evidence, if
48 Mr. Clark is outside the jurisdiction of the court, can his
49 evidence be a Civil Evidence Act notice?
50
51 MR. JUSTICE BELL: What you could do is give a Civil Evidence
52 Act notice in the terms of the statement which he has
53 produced, and then we would take it from there by
54 considering whether there was any counter notice or not.
55 First of all, you would have to see whether there was any
56 counter notice and then what the position is. If you take
57 that course you are only getting, because I do not know
58 what you have in mind and I do not propose to enquire of
59 you, what is in the statement, do you understand?
60
