Day 208 - 24 Jan 96 - Page 20
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2 MR. JUSTICE BELL: Well, by the same token that, quite apart
3 from any legal technicality, I am disinclined to see the
4 expression, the relation of a complaint as evidence of the
5 truth of it, I am certainly disinclined to see lack of
6 expression of a complaint as some positive evidence that
7 there was nothing to complain about. So I would not worry
8 about that. If need be, I will hear some argument on it
9 later on; not at the moment.
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11 MS. STEEL: It is just because I do not know -----
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13 MR. JUSTICE BELL: In a case like this, I am going to have to be
14 very careful to look and see what I have actually got
15 admissible evidence of and what I have not. There is an
16 absolute mass of admissible evidence on virtually every
17 topic, in any event.
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19 MR. RAMPTON: My Lord, can I maybe help, because Ms. Steel is
20 wondering about the course of her cross-examination, and
21 I would not want her to lose an opportunity which she might
22 otherwise have taken. The mere fact that a witness does
23 not have any experience of a particular alleged
24 malpractice, of course, is not evidence that it never
25 happened. That is plain, I would agree. Where, however, a
26 witness -- or, indeed, more than one witness a fortiori --
27 has worked for a long time at the restaurant, has done a
28 lot of hours, and has been in the restaurant a great deal,
29 then your Lordship may be invited by me at least to infer
30 that if it did happen it did not happen very often.
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32 MR. JUSTICE BELL: Another way of putting it is that if a
33 particular practice is said to have been consistently
34 present in a store, and if it is the kind of practice that
35 you would expect people to complain about if it did occur,
36 then one might say the fact of lack of complaint might be
37 an indication that it did not exist or was not prevalent;
38 because one is not looking at the truth or otherwise of the
39 complaint there; one is just applying common sense and
40 saying: if I would expect there to be complaints if that
41 is what has happened and if I am satisfied they were not
42 complaints, then it may lead me to doubt that it ever
43 happened. Then one has to look at whether there are other
44 possible reasons why there might be no complaints made,
45 even if the practice was in effect.
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47 I think it is a slightly different situation to when one is
48 considering where complaints are related, although it is
49 the same test. What you have to look at, that is evidence
50 that a complaint was made or was not made; it is not
51 evidence of the truth of the complaint.
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53 Say, for instance, in so far as you want to say lots of
54 complaints were made about this practice or that practice
55 but Mr. Henden never got to hear of them, and go on to
56 argue -- I am not suggesting, if you do argue it, what my
57 conclusion would be -- that rap sessions really were not
58 doing what those high up in McDonald's had said they were
59 supposed to do. So, just as you can rely upon the fact of
60 complaints in that way, so could Mr. Rampton rely upon lack
