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.
