Day 057 - 29 Nov 94 - Page 64
1 the Plaintiffs' Statement of Claim they are referring to
2 there as the issues in the main action.
3
4 MR. JUSTICE BELL: There is a problem there, because one of the
5 topics which is on this very list is No. 5 "Defendants'
6 pleadings, incorporation of some of the main elements of
7 Defendants' witness statements". So on the basis that what
8 is sauce for the goose is sauce for the gander, in so far
9 as you have brought anything in to factual issue in the
10 case, they are entitled, are they not, at any moment to
11 say: "Well, look you could not possibly have believed that
12 that was true".
13
14 MS. STEEL: All I am saying is I am not clear whether they are
15 saying that what the consider to be the issues in the main
16 action are those set out in the Statement of Claim, or
17 those set out in our pleadings and in witness statements
18 which go wider than what are in the Statement of Claim.
19 For example, the Statement of Claim does not mention CFCs
20 but CFCs have become an issue. I am not sure what their
21 case is.
22
23 MR. JUSTICE BELL: I think it is the latter. Is that not
24 right? It is the whole action; not what just may be at
25 this moment in time in the Statement of Claim or in the
26 Amended Defence and Further and Better Particulars thereof.
27
28 MR. ATKINSON: The issues as they have arisen in this case,
29 this main action.
30
31 MS. STEEL: The point about steps of organisation is that with
32 the exception of, I think, possibly one of them they do not
33 refer to steps of organisation; they just refer to
34 attendance at pickets. If the Plaintiffs are saying they
35 are limiting themselves to what is in those statements,
36 then I think they should expressly state that.
37
38 The point about the leaflets or all the documents that are
39 in the back of here that are alleged to be leaflets, is
40 that they should have to say where they came from, where
41 they were being distributed and when they were being
42 distributed. If they have not kept records of it, then
43 that is their fault. They cannot rely on it. They know
44 that they should keep records like that of when and where
45 leaflets are alleged to have been distributed. As I say,
46 if they have not done it that is their problem. As I said,
47 some of them we have never even seen before.
48
49 MR. JUSTICE BELL: It cannot be right that they cannot rely on
50 them just because they have not kept a record of when and
51 where. What you will be able to argue is if they cannot
52 say when and where and how in relation to you, in common
53 sense it should not be held again against you. You can
54 argue that and one might have to decide it. You cannot
55 suggest that a party is not entitled to rely on material
56 because they did not keep a record of just how and when it
57 came into their custody, can you?
58
59 MS. STEEL: How do we know they did not create the documents
60 themselves; I do not mean the solicitors but somebody with
