Day 057 - 29 Nov 94 - Page 24


     
     1        to call him as a witness, however desirable the Defendants
     2        might think it that we should.
     3
     4        Then, my Lord, there is a provision in Rule 27 which says
     5        that where in any cause or matter a question arises whether
     6        any of the reasons specified in Rule 25,, which is the one
     7        I have just referred to, whether it applies, any of those
     8        reasons, in relation to a person etc., the court then can
     9        decide whether the reason does apply.  As, for example, if
    10        you said:  "Well, he is not fit" and that was disputed, or
    11        it was said:  "You are not telling the truth, in fact, he
    12        is in England", the court can then determine that question.
    13
    14   MS. STEEL:   We would submit that this is a slightly different
    15        situation to what normally happens with Civil Evidence Act
    16        Notices, whereby you cannot force someone to come if they
    17        are beyond the seas.  The point is he is a senior
    18        representative of the First Plaintiff and, therefore, it is
    19        unfair.  What would happen if there was a case where the
    20        Plaintiff lived beyond the seas and he wanted to bring a
    21        libel action in this country and then said:  "But I am not
    22        coming over to give evidence and be cross-examined; you
    23        will just have to rely on my statement", surely that would
    24        not be allowed.  We feel it is a similar situation here.
    25        He is a senior representative of the company.
    26
    27   MR. JUSTICE BELL:  At the moment I think it would be allowed.
    28        It is a question of what weight should be attached to it.
    29        It might be that if a Plaintiff in a libel action did not
    30        come from abroad to give evidence in the witness box, not
    31        very much weight would be attached to his statement.
    32
    33        Before you rush into this, I am offering you the
    34        opportunity actually to look at the Order and Rule and look
    35        through the footnotes and see if you can find any kind of
    36        legal authority which supports what you are saying.  If you
    37        force a decision on me today without any such authority or
    38        argument, you may find that I have no option but to say,
    39        unless it is challenged that Mr. Cook is beyond the seas,
    40        there is no basis upon which I can order that he attends.
    41
    42   MS. STEEL:   We will leave that for another date then.
    43
    44   MR. JUSTICE BELL:  Yes, I think you should.  I am not offering
    45        you any hope that you will find any authority which helps
    46        you, but I am giving you the opportunity to see if you
    47        can.  If you possibly do have anyone who is helping you
    48        behind the scenes, I would urge you to ask them.  You may
    49        get a fairly short answer on it, but I suggest you do ask
    50        them. 
    51 
    52   MR. MORRIS:  I think that deals with the point 3, the witnesses. 
    53
    54   MR. JUSTICE BELL:  I suggest you go back to -----
    55
    56   MR. MORRIS:  Discovery?
    57
    58   MR. JUSTICE BELL:  Yes.
    59
    60   MR. MORRIS:  E.D. Benson's full statement:  I believe it has now

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