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
