Day 087 - 10 Feb 95 - Page 18


     
     1        I am not saying anything about the merits of the Civil
     2        Evidence Act in relation to this American document at all.
     3        One would have, first, to decide whether this was a record
     4        for the purposes of section 4.  Put it another way, one
     5        would have first to decide whether it is a section 2 or a
     6        section 4 case.  In other words, to the extent that it went
     7        beyond first-hand hearsay, one asks these questions, in my
     8        submission -- I am not going to try to answer them at all
     9         -- first of all:  Is it a record for the purpose of
    10        section 4?  If it is, were the people who wrote it acting
    11        under a duty in writing it?
    12
    13        Those, in my submission, are the questions your Lordship
    14        would have to answer in deciding whether to admit this
    15        document and, if so, whether to admit the whole of it or
    16        only some part of it.
    17
    18   MS. STEEL:  I wanted to raise a different point which is that it
    19        appears to me that this American document is, in effect, a
    20        statement in itself.  What I wanted guidance on was what
    21        parts of it would not appear to be a statement.  I can
    22        understand the difference in a press report where you have
    23        comment and what-have-you, but this is like as if an expert
    24        had done a report and this is their report, and in that
    25        case an expert's report is allowed to stand.  That is why
    26        I do not understand this point.
    27
    28   MR. JUSTICE BELL:  You may be right.  I have not even read
    29        this.  It is completely new to me, you see.
    30
    31   MS. STEEL:  No, but that was the point I was trying to make in
    32        the first place but got completely sidetracked.
    33
    34   MR. JUSTICE BELL:  I will not read it all through now.  But what
    35        you want to do is put, as it were, a Civil Evidence Act
    36        Notice on the statement.  You might just as well take
    37        Dr. Riley made in the New England Journal of Medicine,
    38        24th March 1983.
    39
    40   MS. STEEL:   Where is that, sorry?  That is the whole thing?
    41
    42   MR. JUSTICE BELL:  Yes.
    43
    44   MS. STEEL:  We got this from Mr. Mitchell Cohen, whose name is
    45        on the front.  He is one of the authors of the report.
    46
    47   MR. JUSTICE BELL:  All right.  I mean, I was only suggesting the
    48        person there.  By all means -- I think I was told that in
    49        America the most significant author comes last or
    50        something. 
    51 
    52   MR. RAMPTON:  My Lord, it would have to be a statement by all 
    53        people whose names appear at the beginning of it.  It is a
    54        blunderbuss statement.  Whether it is an expert's statement
    55        or not is another question, and what conditions then apply
    56        I have not thought about.  But what is quite clear is that
    57        it is not first-hand hearsay.  If one looks at the end of
    58        the report, in the left-hand column in small writing, one
    59        sees that a good deal of the information contained in this
    60        article (which is probably the best way of describing it at

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