Day 286 - 24 Oct 96 - Page 21
1 McDonald's, and we are entitled to rely on it.
2
3 MR. JUSTICE BELL: You want to be very careful. There is all
4 sorts of law about taking a matter as a whole and not just
5 extracting parts which might be against interests and-----
6
7 MR. MORRIS: As far as I understand, any admission against
8 interest made out of court by a representative of the
9 plaintiffs, or indeed agent of the plaintiffs -- this is in
10 the case of a representative of the plaintiff -- we are
11 entitled to use as evidence.
12
13 MR. JUSTICE BELL: Yes, carry on then.
14
15 MR. MORRIS: Whether this is verbal or any other form. Here we
16 have a signed statement, so there cannot be any doubt about
17 this one. Also, as I understand it, if the person is a
18 representative of the plaintiff, then no obligation to call
19 them.
20
21 MR. RAMPTON: This might be one of the moments at which I
22 should intervene in the interests of the law being got
23 right. Whereas, generally speaking, Mr. Morris is
24 absolutely right, out of court statements made by or on
25 behalf of a party, in whatever form whether orally or in a
26 document or indeed by conduct or gesture, are admissible
27 against that party if they are, or can be construed as,
28 admissions against interest.
29
30 That is not apparently the case in relation to witness
31 statements served under order 30, rule 2A, and I have not
32 had time to think about this, but I rise now simply to draw
33 attention to order 38, rule 2A, sub-rule 6, which says:
34 "Subject to paragraph 9" -- sub-rule 9, that is -- "where
35 the party serving a statement under this rule does not call
36 the witness to whose evidence it relates no other party may
37 put the statement in evidence at the trial."
38
39 I have not given much thought to it, but taken on its face
40 that must mean that it cannot be relied on by way of
41 evidence in favour of the party as an admission against
42 interest. That, my Lord, does not mean -- of course it
43 does not mean and I have always accepted that it does not
44 mean -- that the evidence which Mr. Rose gave is-----
45
46 MR. JUSTICE BELL: No, that is completely different.
47
48 MR. RAMPTON: It is completely different.
49
50 MR. MORRIS: Well, I think that the second part of what
51 Mr. Rampton said about not using a statement in evidence
52 does not apply if it is a representative of the plaintiffs,
53 and we would certainly say that completely contradicts the
54 point, the previous point. Anyway, what they are saying --
55 are they saying Edie Bensilum lied in her statement?
56
57 MR. JUSTICE BELL: They are not saying that. They are just
58 saying -- I mean I have to consider all the evidence, as
59 I explained to you before, and decide whether what Edie
60 Bensilum said to David Rose is reliable or not.
