Day 286 - 24 Oct 96 - Page 21


     
     1        McDonald's, and we are entitled to rely on it.
     2
     3   MR. JUSTICE BELL:  You want to be very careful.  There is all
     4        sorts of law about taking a matter as a whole and not just
     5        extracting parts which might be against interests and-----
     6
     7   MR. MORRIS:   As far as I understand, any admission against
     8        interest made out of court by a representative of the
     9        plaintiffs, or indeed agent of the plaintiffs -- this is in
    10        the case of a representative of the plaintiff -- we are
    11        entitled to use as evidence.
    12
    13   MR. JUSTICE BELL:  Yes, carry on then.
    14
    15   MR. MORRIS:   Whether this is verbal or any other form.  Here we
    16        have a signed statement, so there cannot be any doubt about
    17        this one.  Also, as I understand it, if the person is a
    18        representative of the plaintiff, then no obligation to call
    19        them.
    20
    21   MR. RAMPTON:   This might be one of the moments at which I
    22        should intervene in the interests of the law being got
    23        right.  Whereas, generally speaking, Mr. Morris is
    24        absolutely right, out of court statements made by or on
    25        behalf of a party, in whatever form whether orally or in a
    26        document or indeed by conduct or gesture, are admissible
    27        against that party if they are, or can be construed as,
    28        admissions against interest.
    29
    30        That is not apparently the case in relation to witness
    31        statements served under order 30, rule 2A, and I have not
    32        had time to think about this, but I rise now simply to draw
    33        attention to order 38, rule 2A, sub-rule 6, which says:
    34        "Subject to paragraph 9" -- sub-rule 9, that is -- "where
    35        the party serving a statement under this rule does not call
    36        the witness to whose evidence it relates no other party may
    37        put the statement in evidence at the trial."
    38
    39        I have not given much thought to it, but taken on its face
    40        that must mean that it cannot be relied on by way of
    41        evidence in favour of the party as an admission against
    42        interest.  That, my Lord, does not mean -- of course it
    43        does not mean and I have always accepted that it does not
    44        mean -- that the evidence which Mr. Rose gave is-----
    45
    46   MR. JUSTICE BELL:   No, that is completely different.
    47
    48   MR. RAMPTON:   It is completely different.
    49
    50   MR. MORRIS:   Well, I think that the second part of what 
    51        Mr. Rampton said about not using a statement in evidence 
    52        does not apply if it is a representative of the plaintiffs, 
    53        and we would certainly say that completely contradicts the
    54        point, the previous point.  Anyway, what they are saying --
    55        are they saying Edie Bensilum lied in her statement?
    56
    57   MR. JUSTICE BELL:   They are not saying that.  They are just
    58        saying -- I mean I have to consider all the evidence, as
    59        I explained to you before, and decide whether what Edie
    60        Bensilum said to David Rose is reliable or not.

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