Day 262 - 13 Jun 96 - Page 75


     
     1        labour ward analogy, the nursing cardex and all the notes
     2        on it, the clinical notes and all the entries on it, the
     3        cardio-tacograph trace and anything anyone has written on
     4        it, are all discoverable.  They are all relevant and there
     5        is no privilege, you might say, even though you only
     6        propose to call a doctor who made an entry in a clinical
     7        note and not a nurse, who has made an entry in the nursing
     8        cardex, and they are in practice disclosed.  But you may
     9        have taken a statement from the nurse whom you have decided
    10        not to call, the mid wife, and that is not disclosed.  What
    11        is the rationale behind that?
    12
    13   MR. HALL:  Yes.  It would not be clear in this particular -----
    14
    15   MR. JUSTICE BELL:  Because, you see, the analogy might be notes
    16        made by other inquiry agents of the same meeting, even
    17        though they are not being called, but not any statements
    18        which have been taken from them by the solicitors.
    19
    20   MR. HALL:  It is not merely a question of credibility.  It could
    21        be, of course, that two agents at the same meeting took
    22        notes which are in conflict and that, of course, could be
    23        used for issues of credibility.  It is not merely a
    24        question of credibility in this case.  It may be that a
    25        note made by another agent conflicting with that of a note
    26        made by an agent who gave evidence, or is to give evidence,
    27        may be the more accurate note.
    28
    29   MR. JUSTICE BELL:  I see that, but what I am saying is, let us
    30        suppose privilege has been disclosed in respect of notes of
    31        other inquiry agents who are not going to be called in
    32        relation to one particular meeting.   Why, then, are
    33        statements not actually taken from the person who made the
    34        note disclosable too if they are taken by the solicitor,
    35        because at the moment I would be surprised to hear that
    36        they were disclosable.  Maybe when I read what Mr. Justice
    37        Hobhouse has said more carefully I will understand the
    38        distinction.
    39
    40   MR. HALL:  Yes.  In my respectful submission, it is not
    41        something that your Lordship has to decide in this case,
    42        because, as I understand it, there have only been
    43        statements taken from four.
    44
    45   MR. JUSTICE BELL:  It may be, but I begin to doubt -- you see,
    46        if I think the statements are not disclosable, I may then
    47        wonder why the notes are.  That is all.
    48
    49   MR. HALL:  The notes are not purely derivative.  They do not
    50        necessarily have that relationship with the statement with 
    51        the report intervening.  There is evidence, I think it was 
    52        either today or yesterday and the previous day, to the 
    53        effect that the agents who made their notes were not aware
    54        they were going to be witnesses for some two to three years
    55        after the incident, or after the last infiltration of the
    56        meeting.  Therefore, those notes were not made in
    57        anticipation of making a statement for the purposes of
    58        either giving advice or litigation.  They form an object.
    59        Those documents form an object entirely on their own and
    60        separate from the statements.

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