Day 311 - 06 Dec 96 - Page 24


     
     1
     2   MR. RAMPTON:  No, it is not, and that is where I believe the
     3        difficulty arises in relation to Mr. Russell; and it was
     4        for that reason that in relation to his notes alone we
     5        served a section 4 Civil Evidence Act Notice.
     6
     7   MR. JUSTICE BELL:  I want to come to that in a moment.
     8
     9   MS. STEEL:   When was that served?
    10
    11   MR. JUSTICE BELL:  I say technical; I do not mean technical in
    12        the sense of the specious technical point at all.  The
    13        strict legal position is this: that Mr. Russell could not
    14        refresh, when he was in the witness box, his memory from
    15        the report of 26th April 1990, because that report, unless
    16        either he made the report himself  ---
    17
    18   MR. RAMPTON:  Which he did not say that he did.
    19
    20   MR. JUSTICE BELL: -- and there is no evidence that he did, or
    21        checked it against his notes or his own report.
    22
    23   MR. RAMPTON:  Since his position was that he did not believe he
    24        made any he notes, he could not do that either.
    25
    26   MR. JUSTICE BELL:  No.  The picture I have got is that what his
    27        recollection seemed to be is that he went back to the
    28        office and made a report.
    29
    30   MR. RAMPTON:  Yes.
    31
    32   MR. JUSTICE BELL:  And what we had in court was a report of the
    33        inquiry agents, which said: "The report of our investigator
    34        runs as follows", and then off it goes in the first
    35        person.  On the other hand, there is evidence that he did
    36        take notes; and, if that is right, query whether he then
    37        made a report from his notes and a report which we had was
    38        sent off, was made on that.  But it does not matter,
    39        because it is common ground that the report we had in court
    40        was not actually Mr. Russell's report, and there is no
    41        evidence that he checked it against his report, if he made
    42        one, or his notes, if he made them, is there?
    43
    44   MR. RAMPTON:  I agree.  We do not even know it was. Somebody at
    45        Hartley's obviously typed it.  If we had been able to call
    46        the person from Hartley's to say: "Actually, yes, I do
    47        remember Mr. Russell's notes, and, indeed, this is an
    48        accurate version", it would be different.  King, sorry.  I
    49        am not allowed to say it but the jam person.  I have to say
    50        King.  That is right. 
    51 
    52   MR. JUSTICE BELL:  Yes.  If one looks at ----- 
    53
    54   MR. MORRIS:  Are we still on the same subject?
    55
    56   MR. JUSTICE BELL:  Yes.  If one looks then to see whether it can
    57        go in under section 4.  It would in some ways be better if
    58        you follow it, but I am not sure that technicality is
    59        necessary, I am not sure you need it in the light of the
    60        question I ultimately have to ask Mr. Rampton.  Let us

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