Day 311 - 06 Dec 96 - Page 23
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2 MR. RAMPTON: Even if they have no recollection at all.
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4 MR. JUSTICE BELL: Yes, and that is what refreshing one's memory
5 actually means although that is not what is happening at
6 all, but that is what is all that is meant, and that is
7 what is said in Lord Talbot v Malehide.
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9 MR. RAMPTON: Lord Goddard's words in Grant v Dickson are very
10 expressive in practicalities.
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12 MR. JUSTICE BELL: It has happening all over the country at this
13 very minute, because police officers are looking in their
14 notebooks refreshing their memories when they cannot
15 remember a thing about the subject of their notes.
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17 MR. RAMPTON: That is right.
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19 MR. JUSTICE BELL: Secondly, if the original notes or record has
20 been lost this may still give evidence of a fact which he
21 does not now recollect if it is in a copy or a
22 transcription of a report made from his notes but which he
23 checked at the time.
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25 MR. RAMPTON: That is right, my Lord, yes.
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27 MR. JUSTICE BELL: So that he can say, "Well, I checked it at
28 the time and it substantially reproduces what was in my
29 note which is no longer available."
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31 MR. RAMPTON: That is right.
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33 MR. JUSTICE BELL: That is what happened in Lord Talbot v.
34 Malehide, because the witness, Flood, had checked
35 Connelly's book entries which Connelly, who was not called,
36 had made from Flood's memoranda. But that leads to this
37 question: apart from section 4 of the Civil Evidence Act,
38 which I want to come to in a moment, is it legitimate, and
39 this particularly relates to Mr. Russell and-----
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41 MR. RAMPTON: It only relates to Mr. Russell.
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43 MR. JUSTICE BELL: I think that is probably right, I have not
44 checked through.
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46 MR. MORRIS: Maybe some of Bishop's as well.
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48 MR. JUSTICE BELL: It may not make a jot of difference as to the
49 main thrust of the evidence or the conclusion at the end of
50 the day, but I want to make sure I understand the
51 technicalities of it. If someone else has made a report
52 from the witnesses' notes or in terms from a report made by
53 the witness which is no longer available, and the witness
54 did not compare or check the ultimate report which is the
55 one we have in court for his own report or notes, and he
56 cannot now remember whether the report is accurate or not
57 -- when I say "now", that is when he is in the witness box
58 -- can he use that report to refresh his memory because
59 Doe v. Perkins would seem to say not, and it is neither the
60 Lord Talbot nor the Bryant situation.
