Day 190 - 23 Nov 95 - Page 44
1
2 MR. JUSTICE BELL: I think I should hear your argument in
3 answer. Whether I actually have to give a ruling or not,
4 at some stage I think I should hear your argument. I am
5 afraid you will have to call Miss Lamb off so far as today
6 is concerned, and you will have to think about calling her
7 some time in the future.
8
9 What I would suggest you do is, when you have time, write a
10 letter to Barlow Lyde & Gilbert setting out your best
11 recollection of when you first got to know -- the matters
12 will be the same both with regard to Mark Ryan and Lynval,
13 so I will only say it in relation to one of them -- when
14 you first got to know that Mark Ryan might be, as you would
15 see it, a useful witness, what efforts you made to try and
16 find him and when, and what the result of those efforts
17 was. If you did not make any efforts, set out why that was
18 -- for instance, your misunderstanding as to what the
19 legal position was so far as admissibility of the evidence
20 is concerned -- and then ask Barlow Lyde & Gilbert if they
21 will give you any information which might help you trace
22 Mark Ryan, including when and where they last knew of him.
23 The answer to that may be composite: "We cannot help you
24 about him; we have got no records going back that far, and
25 we do not know when he last worked for McDonald's", or, "We
26 cannot give you any useful information; he last worked for
27 McDonald's at such and such a store in 1989", or whenever
28 it was, and then pose the same questions with regard to
29 Lynval, spelling Lynval all the ways you know it has been
30 spelt.
31
32 That enquiry has two purposes: One, the hope that it may
33 enable you to trace one or both of them and, secondly, if
34 it does not enable you to do that, the question of serving
35 a Civil Evidence Act notice in which you would state that,
36 despite the exercise of reasonable diligence, it has not
37 been possible to identify or find him, leaving it for those
38 who represent McDonald's as to whether they challenge that
39 assertion or not in all the circumstances.
40
41 Look into the other matter I raised a few minutes ago about
42 not being put to call a witness in respect of whom you have
43 given a Civil Evidence Act notice if that witness is, as it
44 were, in the other camp, but that realistically is not
45 going to help you anyway if no one knows where the person
46 is, because it will follow that they are not employed by
47 McDonald's so that would not arise anyway.
48
49 Yes, Mr. Rampton, is there some help on that?
50
51 MR. RAMPTON: Yes. I was going to say it is, in fact, sub-rule
52 2 of rule 29 of Order 38. It actually says that in terms.
53
54 MR. JUSTICE BELL: Thank you. That argument would only help you
55 if you had actually traced either Mark Ryan or Lynval and
56 they were still working for McDonald's in a position where
57 you might be able to say to me it would be embarrassing,
58 actually, to have to call them because of their position
59 with McDonald's, and everything points to that not being
60 the situation here.
