Day 107 - 24 Mar 95 - Page 17


     
     1        Evidence Act Notice on a piece of evidence which is not
     2        admissible because there is no issue between the parties
     3        does not suddenly by some magic trick become admissible.
     4        The service of the counter notice becomes totally
     5        irrelevant once the admission has been made which makes the
     6        evidence inadmissible.
     7
     8   MR. MORRIS:  If you make an admission, as we have been informed
     9        before in this court, then the fact is not open to dispute
    10        and debate, but the matters surrounding and the conclusions
    11        to be drawn and the implications of that are entitled to be
    12        aired.  They do not have to be pleaded.
    13
    14   MR. JUSTICE BELL:  That, I am afraid, is I think where you have
    15        gone wrong.  Conclusions which you draw from the facts
    16        which have been admitted, and are common ground, clearly
    17        have to be aired.  You can ask any expert witness about
    18        it.  But if you allege facts A and B, let us say in this
    19        case on the basis of what you see in the PHLS report and
    20        they are admitted, that does not mean that you can then
    21        adduce evidence of facts C, D, E, F and G which are also in
    22        the report which you have not actually pleaded.
    23
    24        That is why I was careful before to say something to the
    25        effect that you should go back to the report and see what
    26        amendment of your pleading you needed to bring in -- I am
    27        sure I am not using exactly the same words -- matters which
    28        you wanted to rely on which were not so far pleaded in
    29        relation to Preston.  You did that to a limited extent and
    30        that was promptly admitted, so it was checked again.
    31
    32        If there are further matters in the PHLS report which you
    33        want to bring out, then you should seek leave to amend in
    34        relation to those.  Have you actually any kind of statement
    35        from the maker of this report?
    36
    37   MR. MORRIS:  We have a statement verifying it was the report.
    38
    39   MR. JUSTICE BELL:  Yes.  What I want you to do ---
    40
    41   MR. MORRIS:  That is why we put a Civil Evidence Act Notice on
    42        the -----
    43
    44   MR. JUSTICE BELL:  Yes -- so that I can see more precisely what
    45        you are getting at, I have the report in front of me now,
    46        I want you to identify to me the extra facts which you
    47        would in due course either like to prove or have admitted
    48        in support of your case on this aspect of the matter.
    49
    50   MS. STEEL:   Can I just say something in respect of the 
    51        pleadings because I think it is important to look at the 
    52        pleadings?  Our original pleadings were:  "Meat is 
    53        responsible for the majority of cases of food poisoning,
    54        particularly chicken and minced beef as used in burgers".
    55
    56        The request was:  "State whether it is alleged that the
    57        food sold by the Plaintiffs is responsible for giving food
    58        poisoning to those who consume it and/or whether it is
    59        alleged that the public has a greater chance of being given
    60        food poisoning from eating the Plaintiffs' food than other

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