Day 087 - 10 Feb 95 - Page 08
1 altogether in ordinary circumstances, subject only to this,
2 that under rule 29, I think it is, the court has a
3 discretion to say: "Well, they did not comply or he did
4 not comply with the counter notice but still in the
5 exercise of our discretion or my discretion it is fair and
6 just and right that this evidence which is the subject of a
7 Civil Evidence Act Notice should, nonetheless, be admitted
8 in evidence at trial".
9
10 My Lord, what follows from that is, if it is right, that a
11 statement which is the subject of a Civil Evidence Act
12 Notice and which is or may within 21 days become the
13 subject of a counter notice, cannot be given in evidence at
14 trial until it is seen whether the witness is called and,
15 if the witness is not called, whether the court exercises
16 its discretion under rule 29.
17
18 It is then (and only then) that the evidence might be
19 admitted in evidence at trial. Of course, if no counter
20 notice is served and it is not a rule 25 case, then as soon
21 as the 21 days expires, the evidence will become
22 admissible, unless the court in its discretion decides to
23 extend the time of service of the counter notice which, of
24 course, as with all rules of this kind it has an inherent
25 power to do.
26
27 Taking the example of Mr. Clark that would not be so. If
28 we decide to serve a counter notice in relation to
29 Mr. Clark, then it would be served long before 21 days
30 expires. That would put his statement into suspension.
31
32 My Lord, so far as our understanding is correct, so far as
33 a document made by somebody in America is concerned,
34 different considerations apply. We cannot serve a counter
35 notice. I excuse the Defendants (as I am sure your
36 Lordship does) from formally stating that the person who
37 made the statement cannot be called as a witness because he
38 is beyond the seas, because that speaks for itself and is a
39 mere technicality to require such formality.
40
41 It follows from that that so soon as a Civil Evidence Act
42 Notice is placed upon that statement, it becomes admissible
43 as evidence, subject always (and this is in relation to the
44 Preston document; I shall have something to say later on
45 perhaps in relation to Oregon 1982) to its being relevant
46 to an issue in the case. I will not repeat that
47 submission, but I do make that reservation. I do believe
48 that the Defendants have thought that simply because they
49 place a Civil Evidence Act Notice on some piece of paper
50 that automatically makes it admissible, of course, it does
51 not.
52
53 MR. JUSTICE BELL: One point has occurred to me is that
54 Ms. Steel and Mr. Morris may be in the frame of mind that
55 you put what they call a Civil Evidence Act Notice on a
56 document and then the document is admissible in evidence as
57 a document. You might state what your position is in
58 relation to that.
59
60 What I have understood them to be doing is this: Instead
