Day 087 - 10 Feb 95 - Page 19


     
     1        the moment) has been obtained from other sources.  If that
     2        were right, then those parts of this article based upon
     3        that information would have to fall within section 4, if
     4        they fell anywhere.
     5
     6   MS. STEEL:  Surely they would do.
     7
     8   MR. MORRIS:  I think it should be considered as an expert
     9        statement because this is the point of the people that are
    10        charged with a statutory duty to investigate scientific
    11        matters; presumably, it goes without saying that they are
    12        experts charged with that duty.
    13
    14   MR. JUSTICE BELL:  Can you not get any further information if
    15        you are so keen on this?  You have to think where you say
    16        it takes me in the case, but that is a matter for you
    17        because you are preparing your own case.  I am not doing it
    18        for you.  But do you have any contact with Mr. Cohon?
    19
    20   MR. MORRIS:  Yes, I spoke to -----
    21
    22   MR. JUSTICE BELL:  I can see he has responded to you.
    23
    24   MR. MORRIS:  I spoke to Mr. Cohon, basically, to verify the
    25        report, to get a copy of it and to get a cover note so that
    26        we knew we got it from them so it is an authentic
    27        document.  He confirmed to me that McDonald's was the chain
    28        which is not actually mentioned in the report.  McDonald's
    29        have now accepted that in any event with their own
    30        witness.  The Preston report is likewise ----
    31
    32   MR. JUSTICE BELL:  In a sense there may be less concern about
    33        the Preston report, because you identified the person who
    34        made it.  Let us assume for the moment are you going to get
    35        a counter notice in relation to him.  You may find it
    36        difficult to get it in under the Civil Evidence Act anyway,
    37        because they are just put in ordinary lay terms.  There is
    38        someone to come along to court and give the evidence, the
    39        maker of the document or one of them.  So, at the end of
    40        the day, you may find yourself in a position where, if you
    41        want to get into evidence some of the material in the
    42        Preston report, this is putting completely on one side
    43        whether the admission stops you doing that anyway --
    44        leaving that completely on one side for the moment -- you
    45        are going to forced to put someone in the witness box about
    46        it.  Now the American report may be in a different
    47        category, if only for this reason, that you have a rule 25
    48        reason for not calling the maker.  Do you see?
    49
    50   MR. MORRIS:  Yes. 
    51 
    52   MR. JUSTICE BELL:  Then the question is, just what is his 
    53        statement from his own knowledge and what would have to be
    54        excluded in any event because, although he said it, he is
    55        in effect saying what someone else has told him.
    56
    57   MS. STEEL:   But surely he is acting under a duty under that
    58        rule 4?
    59
    60   MR. JUSTICE BELL:  You can argue that.  If you are going to

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