Day 270 - 28 Jun 96 - Page 39
1 to refer to them - Ventouris v. Mountain No. 2 which is
2 1992, volume 1 of the Weekly Law Reports at 887, and
3 following that a judgment by Mr. Justice Rimer in the
4 Chancery Division called Brinks Ltd. v. Abu Saleh which is
5 1995 1 Weekly Law Reports.
6
7 The reason I am not going to refer to those is that the
8 question in those cases, which in both instances was
9 decided against the applicant, the person who wanted to
10 introduce the evidence, the question there was whether the
11 Civil Evidence Act notice, which was documentary in form,
12 could introduce secondary hearsay in an underlying
13 document. The decision in both cases was that it could
14 not.
15
16 But here the underlying statement, the one which is sought
17 to be introduced as evidence in the case, the statements
18 were made orally and not in a document, and therefore those
19 cases do not really matter. Although it would be in my
20 favour if they had been made in documents, it is a simple
21 question of the construction of section 2 of the Civil
22 Evidence Act 1968, which your Lordship will find in volume
23 2 of the White Book at page 1836 at paragraph 6081.
24
25 The wording of the section has not changed since it
26 enacted. My Lord, the two subsections of section 2 which
27 bear on this question are 2.1 and 2.3. I will read them
28 both. 2.1 says:
29
30 "In any civil proceedings a statement made, whether orally
31 or in a document or otherwise, by any person, whether
32 called as a witness in those proceedings or not, shall,
33 subject to this section and to rules of court, be
34 admissible as evidence of any fact stated therein of which
35 direct oral evidence by him...." - and I stress that word
36 - "....would be admissible."
37
38 Then if one looks at Subsection (3):
39
40 "Where in any civil proceedings a statement which was made
41 otherwise than in a document is admissible by virtue of
42 this section, no evidence other than direct oral evidence
43 by the person who made the statement or any person who
44 heard or otherwise perceived it being made shall be
45 admissible for the purpose of proving it."
46
47 My Lord, what that means, and it is a short point, is that
48 to the extent that statement, the written statement of
49 Leanne Claufine-Caston.
50
51 MR. JUSTICE BELL: Just take this slowly.
52
53 MR. RAMPTON: Yes, to the extent that the statement of Ms.
54 Claufine-Caston purports to record what she was told by
55 other people, and to the extent that the defendants seek to
56 rely on what was said by those other people --
57
58 MR. JUSTICE BELL: Yes, I want to take it down, Mr. Rampton.
59
60 MR. RAMPTON: I am sorry.
