Day 286 - 24 Oct 96 - Page 23


     
     1        remind myself of the rules and look at it, but I do not
     2        want you to just to assume that you can start looking at
     3        statements served as witness statements by McDonald's where
     4        the witness was not called, where you did not seek to call
     5        the witness or give a Civil Evidence Act notice to which
     6        there may have been a counter-notice, and suddenly in final
     7        speeches start treating them as if they are evidence or can
     8        go in as admissions for one thing or the other.  It is the
     9        first, very first, time it has been raised.
    10
    11   MR. MORRIS:   It is the first time it has been countered by
    12        Mr. Rampton.  It has come up twenty times in the case, Edie
    13        Bensilum's statement
    14
    15   MR. JUSTICE BELL:  It has not at all.  Not in witness statements
    16        of witnesses who are not being called.
    17
    18   MR. MORRIS:   I have referred to it and read out bits before,
    19        and as far as Colin Clarke is concerned that is slightly
    20        different because he is not actually from the plaintiffs
    21        but we used what he said -----
    22
    23   MR. JUSTICE BELL:   I am surprised to hear it is suggested that
    24        there is any difference; they are all witnesses.  It may,
    25        if they are called, be a point as to their credibility or
    26        reliability to say they are employed by one of the parties,
    27        or indeed they are one of the parties, but they are all
    28        witnesses.
    29
    30   MR. MORRIS:   My understanding is that admissions against
    31        interest could only be made by either a witness that was
    32        actually called or any representative of the plaintiff
    33        -----
    34
    35   MR. JUSTICE BELL:   But their statement has to be got in
    36        evidence.  What she said to David Rose is in evidence by
    37        virtue of his account of it.  Anyway, you carry on.
    38
    39   MR. MORRIS:   Yes.  Anyway, he says the farm suppling McDonald's
    40        Costa Rica through Montecillos had been rainforest.  So on
    41        that basis we have to assume that, if we cannot use her
    42        evidence, all the farms supplying McDonald's Costa Rica had
    43        been rainforest in the 1950s.  If I can just collect my
    44        thoughts for a minute.  (Pause)
    45
    46        If I can say that on page 1 of her notes of the
    47        conversation with David Rose, which is a document not a
    48        witness statement, she says, this is 5th February 1993:
    49        "The Montecillos Co-op supplies six restaurants in Costa
    50        Rica and supplies them with meat from farms established in 
    51        the 1950s."  Anyway, we can see how her notes correspond to 
    52        David Rose's unchallenged recollections. 
    53
    54   MR JUSTICE BELL:  Well, I think that is the bottom line.  I do
    55        not think it is disputed.  It cannot be, because his
    56        evidence was not challenged and she was not called.  But
    57        she said to David Rose what he said, and there is no
    58        problem about that.  It may well be that, for all I know,
    59        Mr. Rampton will say, 'Well, I should prefer evidence of
    60        other witnesses where it conflicts with her' and you say,

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