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

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