Day 311 - 06 Dec 96 - Page 25


     
     1        suppose that the report which is in court falls into
     2        section 4(1).
     3
     4   MR. RAMPTON:  My Lord, yes.
     5
     6   MR. JUSTICE BELL:  Because it is a record compiled by someone --
     7        let us suppose this is so -- acting under a duty from
     8        information supplied by a person, that is, Mr. Russell in
     9        this case ---
    10
    11   MR. RAMPTON:  Yes.
    12
    13   MR. JUSTICE BELL:  -- who had personal knowledge of the matters
    14        dealt with, and was either supplied directly or
    15        indirectly.  Then, subsection (2) applies:
    16
    17        "Where in any civil proceedings a party desiring to give a
    18        statement in evidence by the virtue of this section has
    19        called or intends to call as a witness in the proceedings
    20        the person who originally supplied the information from
    21        which the record containing the statement was compiled."
    22
    23        That is Mr. Russell on this occasion.
    24
    25   MR. RAMPTON:  That is Mr. Russell, my Lord, yes.
    26
    27   MR. JUSTICE BELL:  The statement, (a) shall not be given in
    28        evidence by virtue of this section on behalf of that party
    29        without the leave of the court.
    30
    31   MR. RAMPTON:  That is right.  It has not been yet.
    32
    33   MR. JUSTICE BELL:  No.
    34
    35   MR. RAMPTON:  And it cannot be given until after he has finished
    36        his evidence.
    37
    38   MR. JUSTICE BELL:  No, until after he has finished his
    39        evidence-in-chief.
    40
    41   MR. RAMPTON:  We did not serve the notice even.
    42
    43   MR. JUSTICE BELL:  No.  The normal practice, whether it is under
    44        this section or the section relating to statements of a
    45        witnesses themselves which are going in, not by just saying
    46        they are true but going in on their own right, is to serve
    47        the notice in advance of a witness being called and then,
    48        as the witness comes to the end of evidence-in-chief,
    49        asking, in the case of a section 4 statement, the judge's
    50        leave to put it in.  The judge considers the rights and 
    51        wrongs as he or she sees them and if he grants leave then 
    52        the other side has the opportunity of cross-examining the 
    53        witness upon that report.
    54
    55   MR. RAMPTON:  Yes.
    56
    57   MR. JUSTICE BELL:  But upon what basis should I give leave now?
    58        (a) when that could have been done but was not, and (b)
    59        when the evidence is closed?
    60

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