Day 057 - 29 Nov 94 - Page 24
1 to call him as a witness, however desirable the Defendants
2 might think it that we should.
3
4 Then, my Lord, there is a provision in Rule 27 which says
5 that where in any cause or matter a question arises whether
6 any of the reasons specified in Rule 25,, which is the one
7 I have just referred to, whether it applies, any of those
8 reasons, in relation to a person etc., the court then can
9 decide whether the reason does apply. As, for example, if
10 you said: "Well, he is not fit" and that was disputed, or
11 it was said: "You are not telling the truth, in fact, he
12 is in England", the court can then determine that question.
13
14 MS. STEEL: We would submit that this is a slightly different
15 situation to what normally happens with Civil Evidence Act
16 Notices, whereby you cannot force someone to come if they
17 are beyond the seas. The point is he is a senior
18 representative of the First Plaintiff and, therefore, it is
19 unfair. What would happen if there was a case where the
20 Plaintiff lived beyond the seas and he wanted to bring a
21 libel action in this country and then said: "But I am not
22 coming over to give evidence and be cross-examined; you
23 will just have to rely on my statement", surely that would
24 not be allowed. We feel it is a similar situation here.
25 He is a senior representative of the company.
26
27 MR. JUSTICE BELL: At the moment I think it would be allowed.
28 It is a question of what weight should be attached to it.
29 It might be that if a Plaintiff in a libel action did not
30 come from abroad to give evidence in the witness box, not
31 very much weight would be attached to his statement.
32
33 Before you rush into this, I am offering you the
34 opportunity actually to look at the Order and Rule and look
35 through the footnotes and see if you can find any kind of
36 legal authority which supports what you are saying. If you
37 force a decision on me today without any such authority or
38 argument, you may find that I have no option but to say,
39 unless it is challenged that Mr. Cook is beyond the seas,
40 there is no basis upon which I can order that he attends.
41
42 MS. STEEL: We will leave that for another date then.
43
44 MR. JUSTICE BELL: Yes, I think you should. I am not offering
45 you any hope that you will find any authority which helps
46 you, but I am giving you the opportunity to see if you
47 can. If you possibly do have anyone who is helping you
48 behind the scenes, I would urge you to ask them. You may
49 get a fairly short answer on it, but I suggest you do ask
50 them.
51
52 MR. MORRIS: I think that deals with the point 3, the witnesses.
53
54 MR. JUSTICE BELL: I suggest you go back to -----
55
56 MR. MORRIS: Discovery?
57
58 MR. JUSTICE BELL: Yes.
59
60 MR. MORRIS: E.D. Benson's full statement: I believe it has now
