Day 070 - 20 Dec 94 - Page 49
1 Plaintiffs' witnesses on about what our witnesses had said
2 would all be hypothetical.
3
4 MR. JUSTICE BELL: I take that point. I think the point
5 I particularly had in mind was to question the value of a
6 hypothetical question where the witness has, for better or
7 worse, said that he or she does not know anything about
8 that topic. If, for instance, a witness says: "The
9 situation of fact is this", and then goes on to volunteer
10 an opinion as to the propriety or otherwise of that
11 situation, you are perfectly entitled to say: "But if the
12 situation was this, would your view be different?" I am
13 only giving that as an example.
14
15 Where I have on one or two occasions been anxious about
16 hypothetical questions is where the witness says: "Well,
17 I just do not know about that" because in those situations
18 you have to judge each one as it crops up. But you are
19 probably much better just to accept that as an answer and
20 wait to call your own witness and let them give their
21 evidence of fact and the conclusion they draw from it. It
22 is perfectly proper to have raised it with the Plaintiffs'
23 witness in the first place.
24
25 MS. STEEL: Sometimes it is not that they do not know, it is
26 that that say they do not believe what our witnesses or
27 what we have said, and they do not believe that that could
28 ever be and, therefore, they do not want to answer the
29 question. I think it also came up with Professor Wheelock
30 when we were asking him about people who ate at McDonald's
31 every day. He was saying: "Well, it was just an
32 hypothetical situation".
33
34 MR. JUSTICE BELL: All I can say is it is an area which is
35 fraught with problems. It is a matter which regularly
36 crops up as to whether, whatever the situation is, in
37 evidence which has being given a certain of kind of
38 hypothetical question is useful or not; it can only be
39 dealt with on an ad hoc basis. I certainly was not meaning
40 to say to you: "Do not ask hypothetical questions".
41
42 MS. STEEL: That is fine in theory. The only thing is that it
43 tends to be when it does come up, you indicate that you do
44 not want to talk about it then because it is wasting the
45 witness's time.
46
47 MR. JUSTICE BELL: It may well be that I was guilty of that with
48 regard to Mr. Oakley, because we were anxious to get him
49 finished that day. If you have any doubt about it in the
50 future, raise it specifically with me on the question or
51 questions that are asked.
52
53 MS. STEEL: The "don't know" interjections is what we were
54 talking about the other morning. We are well aware that
55 Mr. Rampton stood up on a number of occasions and said in
56 front of the witness that if the witness says that they do
57 not know about something that they cannot be asked any
58 questions about it. We feel that that gives them
59 encouragement to say that they do not know anything about a
60 subject, because that means that they will not be able to
