Day 164 - 26 Sep 95 - Page 51


     
     1        if the Defendants have the full notes, then we shall spend
     2        literally days in court arguing about some peripheral
     3        irrelevant ----
     4
     5   MR. JUSTICE BELL:  It would be up to me to seek to control that.
     6
     7   MR. RAMPTON:  I understand that, and I would rely heavily on
     8        your Lordship to achieve that.
     9
    10   MR. JUSTICE BELL:  It may be, I do not know, I will have to wait
    11        and hear about their cross-examination, but it may be that
    12        I will have to do that on the basis of those parts of the
    13        notes which are disclosed anyway, chasing peripheral issues
    14        merely as to credit.
    15
    16   MR. RAMPTON:  That is the trouble and there is quite good
    17        authority from Lord Denning, amongst others, that it is a
    18        rambling unrestricted cross-examination as to credit, and
    19        unless it is something which is really helpful to the court
    20        it ought not to be allowed at all.  I am not sure that he
    21        was not somewhat a lone voice when he said that, but even
    22        so it is perhaps some help to your Lordship.
    23
    24        There are other reasons why we would not want to disclose
    25        the whole of the notes.  I would not want the Defendants to
    26        have the opportunity to use in credit, whether effectively
    27        or not at this stage I cannot tell, material which I am not
    28        obliged to disclose.  I think I am entitled to stand on my
    29        strict rights if I am right about relevance and to say,
    30        well, your Lordship may think it somewhat artificial, but
    31        if we are right about relevance then we are entitled to
    32        stand on my strict rights and to deprive the Defendants,
    33        because it is adversarial litigation, of a possible
    34        advantage which they might get from having those parts of
    35        the notes which are not relevant to any pleaded issue.
    36
    37   MR. JUSTICE BELL:  What, an advantage in this case?
    38
    39   MR. RAMPTON:  Yes, an advantage in cross-examination as to
    40        credit.  After all, the first test of relevance under the
    41        Peruvian Guano rule is that the material must be relevant,
    42        whether directly or indirectly, to an issue in the case, an
    43        issue between the parties.  After that one goes on to say:
    44         "Yes, of course it is disclosable if it may advance your
    45        opponent's case and damage your own".  But the first
    46        barrier you have to pass is the test of relevance, which is
    47        why the courts have said that material which relates only
    48        to credit, although an effective cross-examination as to
    49        credit may advance your case, that material is not
    50        disclosable.  I do not want to whet the Defendants appetite 
    51        by making them think there is any such material but ----- 
    52 
    53   MR. JUSTICE BELL:   I think I will look at Ballantyne, but
    54        I think it would be useful if you can track down the case
    55        you think has been ruled on since.
    56
    57   MS. STEEL:  Which cases are going to be looked at?
    58
    59   MR. JUSTICE BELL:  Ballantyne is reported in 1974 1 WLR, page
    60        1125, or 1974 2 AER, page 503.  Then there is another

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