Day 190 - 23 Nov 95 - Page 44


     
     1
     2   MR. JUSTICE BELL:  I think I should hear your argument in
     3        answer.  Whether I actually have to give a ruling or not,
     4        at some stage I think I should hear your argument.  I am
     5        afraid you will have to call Miss Lamb off so far as today
     6        is concerned, and you will have to think about calling her
     7        some time in the future.
     8
     9        What I would suggest you do is, when you have time, write a
    10        letter to Barlow Lyde & Gilbert setting out your best
    11        recollection of when you first got to know -- the matters
    12        will be the same both with regard to Mark Ryan and Lynval,
    13        so I will only say it in relation to one of them -- when
    14        you first got to know that Mark Ryan might be, as you would
    15        see it, a useful witness, what efforts you made to try and
    16        find him and when, and what the result of those efforts
    17        was.  If you did not make any efforts, set out why that was
    18        -- for instance, your misunderstanding as to what the
    19        legal position was so far as admissibility of the evidence
    20        is concerned -- and then ask Barlow Lyde & Gilbert if they
    21        will give you any information which might help you trace
    22        Mark Ryan, including when and where they last knew of him.
    23        The answer to that may be composite:  "We cannot help you
    24        about him; we have got no records going back that far, and
    25        we do not know when he last worked for McDonald's", or, "We
    26        cannot give you any useful information; he last worked for
    27        McDonald's at such and such a store in 1989", or whenever
    28        it was, and then pose the same questions with regard to
    29        Lynval, spelling Lynval all the ways you know it has been
    30        spelt.
    31
    32        That enquiry has two purposes:  One, the hope that it may
    33        enable you to trace one or both of them and, secondly, if
    34        it does not enable you to do that, the question of serving
    35        a Civil Evidence Act notice in which you would state that,
    36        despite the exercise of reasonable diligence, it has not
    37        been possible to identify or find him, leaving it for those
    38        who represent McDonald's as to whether they challenge that
    39        assertion or not in all the circumstances.
    40
    41        Look into the other matter I raised a few minutes ago about
    42        not being put to call a witness in respect of whom you have
    43        given a Civil Evidence Act notice if that witness is, as it
    44        were, in the other camp, but that realistically is not
    45        going to help you anyway if no one knows where the person
    46        is, because it will follow that they are not employed by
    47        McDonald's so that would not arise anyway.
    48
    49        Yes, Mr. Rampton, is there some help on that?
    50 
    51   MR. RAMPTON:  Yes.  I was going to say it is, in fact, sub-rule 
    52        2 of rule 29 of Order 38.  It actually says that in terms. 
    53
    54   MR. JUSTICE BELL:  Thank you.  That argument would only help you
    55        if you had actually traced either Mark Ryan or Lynval and
    56        they were still working for McDonald's in a position where
    57        you might be able to say to me it would be embarrassing,
    58        actually, to have to call them because of their position
    59        with McDonald's, and everything points to that not being
    60        the situation here.

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