Day 087 - 10 Feb 95 - Page 08


     
     1        altogether in ordinary circumstances, subject only to this,
     2        that under rule 29, I think it is, the court has a
     3        discretion to say:  "Well, they did not comply or he did
     4        not comply with the counter notice but still in the
     5        exercise of our discretion or my discretion it is fair and
     6        just and right that this evidence which is the subject of a
     7        Civil Evidence Act Notice should, nonetheless, be admitted
     8        in evidence at trial".
     9
    10        My Lord, what follows from that is, if it is right, that a
    11        statement which is the subject of a Civil Evidence Act
    12        Notice and which is or may within 21 days become the
    13        subject of a counter notice, cannot be given in evidence at
    14        trial until it is seen whether the witness is called and,
    15        if the witness is not called, whether the court exercises
    16        its discretion under rule 29.
    17
    18        It is then (and only then) that the evidence might be
    19        admitted in evidence at trial.  Of course, if no counter
    20        notice is served and it is not a rule 25 case, then as soon
    21        as the 21 days expires, the evidence will become
    22        admissible, unless the court in its discretion decides to
    23        extend the time of service of the counter notice which, of
    24        course, as with all rules of this kind it has an inherent
    25        power to do.
    26
    27        Taking the example of Mr. Clark that would not be so.  If
    28        we decide to serve a counter notice in relation to
    29        Mr. Clark, then it would be served long before 21 days
    30        expires.  That would put his statement into suspension.
    31
    32        My Lord, so far as our understanding is correct, so far as
    33        a document made by somebody in America is concerned,
    34        different considerations apply.  We cannot serve a counter
    35        notice.  I excuse the Defendants (as I am sure your
    36        Lordship does) from formally stating that the person who
    37        made the statement cannot be called as a witness because he
    38        is beyond the seas, because that speaks for itself and is a
    39        mere technicality to require such formality.
    40
    41        It follows from that that so soon as a Civil Evidence Act
    42        Notice is placed upon that statement, it becomes admissible
    43        as evidence, subject always (and this is in relation to the
    44        Preston document; I shall have something to say later on
    45        perhaps in relation to Oregon 1982) to its being relevant
    46        to an issue in the case.  I will not repeat that
    47        submission, but I do make that reservation.  I do believe
    48        that the Defendants have thought that simply because they
    49        place a Civil Evidence Act Notice on some piece of paper
    50        that automatically makes it admissible, of course, it does 
    51        not. 
    52 
    53   MR. JUSTICE BELL:  One point has occurred to me is that
    54        Ms. Steel and Mr. Morris may be in the frame of mind that
    55        you put what they call a Civil Evidence Act Notice on a
    56        document and then the document is admissible in evidence as
    57        a document.  You might state what your position is in
    58        relation to that.
    59
    60        What I have understood them to be doing is this:  Instead

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