Day 312 - 11 Dec 96 - Page 33
1 which is not accepted, so the opinions of an expert must be
2 challenged if they are to be disputed.
3
4 Then after that there is a note, after the point, after the
5 kind of note at 63, that in the case it was held on appeal
6 that if crucial evidence is to be decided in final speeches
7 it must be clearly stated to the witness whilst he is in
8 the witness box that the evidence is not accepted, albeit
9 no detailed questioning takes place.
10
11 MR. JUSTICE BELL: Well, I mean, all this, the 'musts' rather
12 than 'mays' are just contrary to my experience over very
13 many years, almost entirely in litigation and advice on
14 litigation. I do not mean to choke you off in your
15 argument, you have made it before. It seems fairly simple
16 to me, when witnesses for one side come along on a
17 particular issue and they are giving evidence first on the
18 issues, obviously the advocate for the other side has to
19 put his case to them and make the challenges clear. But
20 then by the time we come to his witnesses one should be
21 able to see what the issues are, the witnesses who are
22 giving evidence second know what the witnesses on the issue
23 have already said in relation to it and they can deal with
24 it in their own evidence, and there must be an element of
25 discretion as to just how much you challenge and what you
26 challenge. Otherwise, it would involve putting to the
27 witnesses who come second on a topic everything contrary to
28 their evidence which had been said given by the witnesses
29 called by the other side earlier on in the trial.
30
31 MS. STEEL: Well...
32
33 MR. JUSTICE BELL: That is a complete procedural nonsense.
34
35 MS. STEEL: Firstly, that assumes that the person giving
36 evidence second is not aware of what the testimony is.
37
38 MR. JUSTICE BELL: It is up to the people who are calling him to
39 make him aware of anything which may be contrary to his
40 own.
41
42 MS. STEEL: Secondly, particularly in the case of expert
43 witnesses, it is important that their evidence is
44 challenged where it is... I mean, obviously, you do not
45 have to challenge every tiny little point that does not
46 have any real significance in the case, but anything that
47 is a substantial issue should be challenged so that if
48 there is further explanation to be given by the witness
49 they have the opportunity to do so. We would say that is
50 basically a common sense.
51
52 MR. JUSTICE BELL: That is too broad. It only gives one
53 authority for the whole of that paragraph, and it is 64
54 years old.
55
56 MR. MORRIS: There is a point 65 also.
57
58 MR. JUSTICE BELL: Yes, it is the ibidem, which means the same
59 place.
60
