Day 164 - 26 Sep 95 - Page 51
1 if the Defendants have the full notes, then we shall spend
2 literally days in court arguing about some peripheral
3 irrelevant ----
4
5 MR. JUSTICE BELL: It would be up to me to seek to control that.
6
7 MR. RAMPTON: I understand that, and I would rely heavily on
8 your Lordship to achieve that.
9
10 MR. JUSTICE BELL: It may be, I do not know, I will have to wait
11 and hear about their cross-examination, but it may be that
12 I will have to do that on the basis of those parts of the
13 notes which are disclosed anyway, chasing peripheral issues
14 merely as to credit.
15
16 MR. RAMPTON: That is the trouble and there is quite good
17 authority from Lord Denning, amongst others, that it is a
18 rambling unrestricted cross-examination as to credit, and
19 unless it is something which is really helpful to the court
20 it ought not to be allowed at all. I am not sure that he
21 was not somewhat a lone voice when he said that, but even
22 so it is perhaps some help to your Lordship.
23
24 There are other reasons why we would not want to disclose
25 the whole of the notes. I would not want the Defendants to
26 have the opportunity to use in credit, whether effectively
27 or not at this stage I cannot tell, material which I am not
28 obliged to disclose. I think I am entitled to stand on my
29 strict rights if I am right about relevance and to say,
30 well, your Lordship may think it somewhat artificial, but
31 if we are right about relevance then we are entitled to
32 stand on my strict rights and to deprive the Defendants,
33 because it is adversarial litigation, of a possible
34 advantage which they might get from having those parts of
35 the notes which are not relevant to any pleaded issue.
36
37 MR. JUSTICE BELL: What, an advantage in this case?
38
39 MR. RAMPTON: Yes, an advantage in cross-examination as to
40 credit. After all, the first test of relevance under the
41 Peruvian Guano rule is that the material must be relevant,
42 whether directly or indirectly, to an issue in the case, an
43 issue between the parties. After that one goes on to say:
44 "Yes, of course it is disclosable if it may advance your
45 opponent's case and damage your own". But the first
46 barrier you have to pass is the test of relevance, which is
47 why the courts have said that material which relates only
48 to credit, although an effective cross-examination as to
49 credit may advance your case, that material is not
50 disclosable. I do not want to whet the Defendants appetite
51 by making them think there is any such material but -----
52
53 MR. JUSTICE BELL: I think I will look at Ballantyne, but
54 I think it would be useful if you can track down the case
55 you think has been ruled on since.
56
57 MS. STEEL: Which cases are going to be looked at?
58
59 MR. JUSTICE BELL: Ballantyne is reported in 1974 1 WLR, page
60 1125, or 1974 2 AER, page 503. Then there is another
