Day 157 - 18 Jul 95 - Page 49


     
     1             For the same reasons the Commission considers
     2             that it has not been shown to be unreasonable or
     3             arbitrary to give low priority to any reform of
     4             litigation procedures in defamation, however
     5             desirable such reform may be.  Furthermore, the
     6             Commission does not consider that the lack of
     7             restriction on any award of damages affects the
     8             applicants claiming to be unemployed and
     9             penniless.  Should they lose the defamation
    10             case, account will be taken of their income in
    11             any attempt to enforce an over burdensome
    12             award."
    13
    14        None of that, of course, applicable in this case:
    15
    16             "In the circumstances the Commission finds that
    17             there are reasonable and objective grounds for
    18             the state not to provide special assistance to
    19             litigants in defamation proceedings.  It follows
    20             that this part of their application is
    21             manifestly ill-founded within the meaning of
    22             article 27.2."
    23
    24        My Lord, if that be the law of the European Convention on
    25        Human Rights so far as it affects the Defendants in this
    26        case, and if that law be that the suggestion that they were
    27        being unfairly treated under article 6 and article 14
    28        because of a lack of legal aid was manifestly ill-founded,
    29        so must it follow (as night follows day) that the present
    30        application for payment for transcripts, whether by
    31        McDonald's or by the government, is manifestly ill-founded
    32        under that same jurisprudence.
    33
    34        My Lord, I do not leave that there because knowing your
    35        Lordship, as (to some extent) I now do, I am bound to
    36        accept that your Lordship will ask and answer the
    37        question:  How unfair, in fact, is McDonald's, or is the
    38        effect of McDonald's decision to terminate the provision of
    39        the transcripts to the Defendants at this stage in the case
    40        absent the undertaking to which I shall return in a moment?
    41
    42        My Lord, first of all note taking.  True it is that the
    43        taking of a good note requires a certain amount of skill,
    44        practice and experience.  True it is not that anybody who
    45        has taken a note ever writes down everything that is said.
    46        One writes down what one thinks is significant.  One does
    47        exactly the same thing when one reads a transcript.  Since
    48        it is a contemporaneous note it is a very good reminder or
    49        memento of what one thought was important at the time.
    50 
    51        Second, my Lord, there is, of course, your Lordship's note 
    52        so if there should be any dispute about what anybody was 
    53        saying at any particular time that can be cured.  As a long
    54        stop to that there will, of course, be available in our
    55        hands the actual transcript to resolve any such question.
    56        On top of that the Defendants will, of course, continue to
    57        have the CaseView screens operating daily in the court in
    58        case they should fall behind with their note, in case they
    59        should want to look back at what any witness had said, and
    60        so on and so forth.

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