Day 081 - 31 Jan 95 - Page 59


     
     1        that is England and Wales, because normally as a broad
     2        generality the orders of the High Court in London only run
     3        in England and Wales.  There are a whole load of exceptions
     4        to that, but that is basically the situation.
     5
     6        If Mr. Clark being the subject of a writ of subpoena did
     7        not attend to give evidence, the question of whether there
     8        should be any penalty and, if so, what would not be a
     9        matter for me; it would be a matter for the Court of
    10        Session at Edinburgh, that is subsection 3.  In any event,
    11        any court ceased with any question of any punishment for a
    12        person neglecting or refusing to appear shall not proceed
    13        unless it is shown that sufficient money has been given to
    14        the witness to cover the expenses of coming in and giving
    15        evidence in general terms.  So you have to be prepared to
    16        offer a sufficient sum to cover that.
    17
    18   MS. STEEL:   Would we have to pay that or does the court pay
    19        that?
    20
    21   MR. JUSTICE BELL:  No, you have to because you are the person
    22        calling the witness.
    23
    24   MS. STEEL:  Are there any provisions where the court can pay it,
    25        does it have the power to?
    26
    27   MR. JUSTICE BELL:  Not that I am aware of, no.  The first thing
    28        to do is to decide whether you, having taken your own
    29        counsel and taken heed of or discarded as you wish what
    30        I have had to say about the matter, actually want to call
    31        Mr. Clark.  If you do not, there we are.  If you do, since
    32        Mr. Clark is here, there are some things I would wish to
    33        say to him before we consider any question of a subpoena.
    34
    35   MR. MORRIS:  Could we just say that the point in Section 5 says:
    36        "Nothing in this section shall affect the power of the
    37        High Court to issue a commission for the examination of
    38        witnesses out of the jurisdiction of the court in any
    39        case."  Does that mean that the court has the power to call
    40        Mr. Clark whether or not we can afford to pay his
    41        expenses?
    42
    43   MR. JUSTICE BELL:  No.  That is taking evidence on commission
    44        which means someone actually takes the evidence, not me,
    45        wherever the witness is.
    46
    47   MR. MORRIS:  The second part (B) admissibility of evidence, if
    48        Mr. Clark is outside the jurisdiction of the court, can his
    49        evidence be a Civil Evidence Act notice?
    50 
    51   MR. JUSTICE BELL:  What you could do is give a Civil Evidence 
    52        Act notice in the terms of the statement which he has 
    53        produced, and then we would take it from there by
    54        considering whether there was any counter notice or not.
    55        First of all, you would have to see whether there was any
    56        counter notice and then what the position is.  If you take
    57        that course you are only getting, because I do not know
    58        what you have in mind and I do not propose to enquire of
    59        you, what is in the statement, do you understand?
    60

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