Day 149 - 06 Jul 95 - Page 25
1 is doing or has done, which is to take make a list of all
2 those troublesome documents, because it is a difficult,
3 technical problem. I do not think it is difficult, but it
4 is technical. It may lead to an awful difficulty that
5 there is a mass of material which has no evidential status
6 at all.
7
8 MR. JUSTICE BELL: You see, it is one thing if the parties agree
9 that what appears on the face of printouts is fact; in
10 other words, mutual admissions are made in relation to
11 them. But in so far as the eventual document -- be it a
12 computer printout or the result of an employee's survey --
13 as one traces it back to its roots, is the result of what a
14 large number of people have said to a smaller number of
15 people, which they have then transferred to one person,
16 perhaps, who put it into a computer or whatever, and
17 another who has taken it out, that could well be hearsay
18 upon hearsay, not admissible, save in so far as it comes
19 within the Civil Evidence Act provisions which relate to
20 records which people have a duty to keep as part of their
21 employment. But save in so far as it can be
22 brought -- I am not inviting you to look at it
23 now -- within some statutory provision or, at least, rule
24 of law, a lot of material in this case which both parties
25 from their own aspect have sought to make use of could turn
26 out to be totally inadmissible.
27
28 MR. RAMPTON: That is what is worrying me.
29
30 MR. JUSTICE BELL: The only way around that, if both parties
31 want to use it, is to look at a document and say: "Right,
32 well, it is inadmissible but we will each agree that those
33 are to be considered admitted facts for the purpose of this
34 case", and then each side can argue what conclusions are to
35 be drawn from those admitted facts. But it needs both
36 sides, or at least the side against whom the figures are
37 being relied on. I mean, I am just thinking aloud at the
38 moment.
39
40 MR. RAMPTON: This is why I raised it, because it has been
41 troubling me for some time.
42
43 MR. JUSTICE BELL: One thing which does concern me is, if a
44 point is not taken on it in the course of the hearing, and
45 if there were then an appeal and someone new comes into the
46 matter -- I suppose it might be said it is more likely to
47 be someone representing the Defendants, but I do not know
48 what might happen; from my point of view, I have to look at
49 it as a possibility on both sides -- or thinks up some
50 point which has not been taken, then the Court of Appeal
51 has just to go back to what the legal position is.
52
53 MR. RAMPTON: My Lord, I quite agree.
54
55 MR. JUSTICE BELL: So I think it has to be aired in some way.
56
57 MR. RAMPTON: It has. Quite how it gets aired is another
58 question. One possible solution is for us to present the
59 Defendants with a list, as comprehensive a list as
60 possible -- and one hopes it would be exhaustive -- of all
