Day 087 - 10 Feb 95 - Page 07


     
     1        wanted guidance, really, on the status of Civil Evidence
     2        Act documents, because, obviously, that is the purpose of
     3        putting a Notice on them is so they are admissible
     4        evidence, to try to avoid some difficulties there have been
     5        and dispute there has been over referring to certain
     6        documents.
     7
     8   MR. RAMPTON:  My Lord, I can assist, if it helps your Lordship?
     9
    10   MR. JUSTICE BELL:  I think it would help if you say what you
    11        would say what the position is, Mr. Rampton, with regard to
    12        their status, quite regardless of your point about admitted
    13        facts.
    14
    15   MR. RAMPTON:  Yes.  Leaving that entirely on one side and,
    16        therefore, dealing with Mr. Colin Clark as an example and
    17        not with the Manchester Public Health, or whatever it was,
    18        report -- sorry, the Preston Public Health report, may
    19        I ask your Lordship just to turn up Order 38, rule 26,
    20        first of all?  I will deal with this, if I may, on a
    21        hypothetical basis, that the Defendants will receive a
    22        counter notice in respect of Mr. Clark's statement.
    23
    24   MR. JUSTICE BELL:  Yes.
    25
    26   MR. RAMPTON:  My Lord, as your Lordship has already observed,
    27        Order 38 rule 26 enables a party on whom a Civil Evidence
    28        Act Notice is served under rule 21 to serve a counter
    29        notice within 21 days of receipt of the Notice requiring
    30        the party who served the Notice to call the witness to give
    31        evidence at trial.
    32
    33        My Lord, that does not apply if any of the conditions laid
    34        down in rule 25 apply, that it is to say, that the witness
    35        is beyond the seas or ill or dead or that there is some
    36        other reason why he cannot be called as a witness.  The
    37        Notice which is given under rule 22 must specify the
    38        reasons why the witness cannot be called and those must be
    39        one or more of the reasons given in rule 25.
    40
    41        So far as, for example, Mr. Clark is concerned, that has
    42        not and could not be done because he is alive and well and
    43        he is within the United Kingdom and can be called as a
    44        witness.
    45        Therefore, within 21 days it is open to us to serve a
    46        counter notice.
    47
    48        The effect of the counter notice, in our submission (and
    49        one can see this from the notes at the top of page 673), is
    50        as follows:  During the period in which the counter notice, 
    51        the 21 days in which the counter notice may be served, it 
    52        is obvious that the statement which is the subject of the 
    53        original Notice cannot be treated as evidence, because once
    54        the counter notice is served it cannot be given in evidence
    55        until it is seen whether or not the party on whom the
    56        counter notice is served complies with it.
    57
    58        If the party on whom the counter notice is served does not
    59        comply with the counter notice and does not call a witness
    60        at trial, then the statement is excluded from evidence

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