Day 190 - 23 Nov 95 - Page 13
1 That is taken from an article in the Harvard Law Reviews,
2 as one sees from the note 63.
3
4 "The scope of the agent's authority as regards
5 the making of admissions may be much narrower
6 than that of his authority to make contracts or
7 dispose of property, for in the latter cases the
8 interests and possible losses of third parties
9 must more directly be borne in mind. Thus in
10 the absence of express authority to make the
11 communication during which an admission is made,
12 not only must the transaction about which the
13 admission was made have been one upon which the
14 agent was concerned on the principal's behalf at
15 the time of the admission, but also it must have
16 been within his authority to make admissions, or
17 at least to effect the relevant communication,
18 and this may be difficult to establish. Beyond
19 this the principal will not be bound. Authority
20 to make admissions is a type of implied
21 authority, but the implication should be made
22 with caution. Apparent authority, strictly
23 so-called, is not here relevant...."
24
25 My Lord, we would accept that it has nothing to do with it.
26 I go on to next complete paragraph:
27
28 "Authority to make admissions regarding
29 past transactions will rarely be inferred...."
30
31 I will not read the rest of that paragraph. Then the last
32 paragraph on this page:
33
34 "The rules given above are rules of the
35 law of evidence, under which admissions of the
36 parties to a suit and their agents are
37 receivable in evidence as one of the exceptions
38 to the rule against hearsay. But evidence which
39 may not be received as admission may
40 nevertheless be received by virtue of other
41 rules of the law of evidence, e.g. under the
42 Evidence Act 1938, and under sections 2(1), 4(1)
43 and 5(1) of the Civil Evidence Act 1968. These
44 latter provisions could, for example, permit the
45 reception of the evidence in Illustrations 2, 4,
46 8 and 9."
47
48 My Lord, that is, in our respectful submission, a very
49 important distinction in this particular instance.
50 Section 2 of the Civil Evidence Act 1968 enables
51 out-of-court statements to be admitted in evidence as
52 though the maker of the out-of-court statement were
53 standing in the witness box. Thus, in this particular
54 case, if the Defendants had posted a Civil Evidence Act
55 notice on either of these two interviews, then, subject to
56 the question whether, in themselves, the contents of the
57 interviews are objectionable on the ground of hearsay,
58 those statements could have been given in evidence, just as
59 the witnesses themselves could have come to court and given
60 admissible direct evidence of their own experience inside
