Day 166 - 28 Sep 95 - Page 09


     
     1        incidents within topics which they deal with in their
     2        statements without prior warning, because that is the whole
     3        point of having written statements.
     4
     5        It cannot be a reason for not having to do that, that you
     6        are not represented and may not see your witness until the
     7        night before.  It is a fact of the case that you are not
     8        represented, but there is absolutely no point in having
     9        statements of witnesses served if, in fact, then the
    10        witness when called embarks on a whole lot of new matters
    11        of which no reasonably detailed warning is given in their
    12        statements.
    13
    14   MS. STEEL:  Presumably, that would not include matters where
    15        they are rebutting something that the Plaintiffs' witnesses
    16        have said?
    17
    18   MR. JUSTICE BELL:  In general principle, I accept that.  My
    19        concern is to avoid the kind of situation which arose, in
    20        my view, when Miss Hovi was called, which arises from the
    21        fact that you called her as your witness after we had
    22        evidence from the Plaintiffs' witnesses on the topic with
    23        which she is concerned.  What I do not want to have to
    24        find, because otherwise this case will go on and on and on,
    25        is that I have repeated applications to call evidence in
    26        rebuttal.
    27
    28        Insofar as your witnesses give evidence which is not
    29        intimated in their statements but is answering something
    30        which a previous witness has said, my concern is much less
    31        because we will have had the Plaintiffs' evidence on that
    32        point and then you are giving your evidence.
    33
    34        But what you have to do your very best to do, whether a
    35        witness is coming from New Zealand or anywhere else, is to
    36        get to grips with whether they really do have something
    37        extra to say.  If, for instance, they produced a document
    38        which reflects their view, then you need not concern
    39        yourself too much about that probably because notice will
    40        have been given in the document.  If it is a whole book or
    41        a very long tract, you would be very well advised to say:
    42         "The matters which are of particular interest are" and
    43        then give the page references or the chapter references.
    44
    45   MS. STEEL:   OK.
    46
    47   MR. JUSTICE BELL:  There is no need for you to suffer through
    48        this direction because you can ask my leave at any stage,
    49        but somehow we have to try to avoid the risk of new
    50        material coming in after the other side's witness who might 
    51        have dealt with it have passed through the witness box.  If 
    52        you put it in cross-examination, again the concern is less 
    53        because at least the witnesses who have gone first have had
    54        some opportunity to deal with it.
    55
    56        What I think I will do -- perhaps you might remind me
    57        tonight -- is I will photocopy from the Weekly Law Reports
    58        the practice direction, because you will find it does not
    59        actually say any more than I have said, and I have been
    60        rather less strict than the practice direction.

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