Day 208 - 24 Jan 96 - Page 20


     
     1
     2   MR. JUSTICE BELL:  Well, by the same token that, quite apart
     3        from any legal technicality, I am disinclined to see the
     4        expression, the relation of a complaint as evidence of the
     5        truth of it, I am certainly disinclined to see lack of
     6        expression of a complaint as some positive evidence that
     7        there was nothing to complain about.  So I would not worry
     8        about that.  If need be, I will hear some argument on it
     9        later on; not at the moment.
    10
    11   MS. STEEL:  It is just because I do not know -----
    12
    13   MR. JUSTICE BELL:  In a case like this, I am going to have to be
    14        very careful to look and see what I have actually got
    15        admissible evidence of and what I have not.  There is an
    16        absolute mass of admissible evidence on virtually every
    17        topic, in any event.
    18
    19   MR. RAMPTON:  My Lord, can I maybe help, because Ms. Steel is
    20        wondering about the course of her cross-examination, and
    21        I would not want her to lose an opportunity which she might
    22        otherwise have taken.  The mere fact that a witness does
    23        not have any experience of a particular alleged
    24        malpractice, of course, is not evidence that it never
    25        happened.  That is plain, I would agree.  Where, however, a
    26        witness -- or, indeed, more than one witness a fortiori --
    27        has worked for a long time at the restaurant, has done a
    28        lot of hours, and has been in the restaurant a great deal,
    29        then your Lordship may be invited by me at least to infer
    30        that if it did happen it did not happen very often.
    31
    32   MR. JUSTICE BELL:  Another way of putting it is that if a
    33        particular practice is said to have been consistently
    34        present in a store, and if it is the kind of practice that
    35        you would expect people to complain about if it did occur,
    36        then one might say the fact of lack of complaint might be
    37        an indication that it did not exist or was not prevalent;
    38        because one is not looking at the truth or otherwise of the
    39        complaint there; one is just applying common sense and
    40        saying:  if I would expect there to be complaints if that
    41        is what has happened and if I am satisfied they were not
    42        complaints, then it may lead me to doubt that it ever
    43        happened.  Then one has to look at whether there are other
    44        possible reasons why there might be no complaints made,
    45        even if the practice was in effect.
    46
    47        I think it is a slightly different situation to when one is
    48        considering where complaints are related, although it is
    49        the same test.  What you have to look at, that is evidence
    50        that a complaint was made or was not made; it is not 
    51        evidence of the truth of the complaint. 
    52 
    53        Say, for instance, in so far as you want to say lots of
    54        complaints were made about this practice or that practice
    55        but Mr. Henden never got to hear of them, and go on to
    56        argue -- I am not suggesting, if you do argue it, what my
    57        conclusion would be -- that rap sessions really were not
    58        doing what those high up in McDonald's had said they were
    59        supposed to do.  So, just as you can rely upon the fact of
    60        complaints in that way, so could Mr. Rampton rely upon lack

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