Day 149 - 06 Jul 95 - Page 25


     
     1        is doing or has done, which is to take make a list of all
     2        those troublesome documents, because it is a difficult,
     3        technical problem.  I do not think it is difficult, but it
     4        is technical.  It may lead to an awful difficulty that
     5        there is a mass of material which has no evidential status
     6        at all.
     7
     8   MR. JUSTICE BELL:  You see, it is one thing if the parties agree
     9        that what appears on the face of printouts is fact; in
    10        other words, mutual admissions are made in relation to
    11        them.  But in so far as the eventual document -- be it a
    12        computer printout or the result of an employee's survey --
    13        as one traces it back to its roots, is the result of what a
    14        large number of people have said to a smaller number of
    15        people, which they have then transferred to one person,
    16        perhaps, who put it into a computer or whatever, and
    17        another who has taken it out, that could well be hearsay
    18        upon hearsay, not admissible, save in so far as it comes
    19        within the Civil Evidence Act provisions which relate to
    20        records which people have a duty to keep as part of their
    21        employment.  But save in so far as it can be
    22        brought -- I am not inviting you to look at it
    23        now -- within some statutory provision or, at least, rule
    24        of law, a lot of material in this case which both parties
    25        from their own aspect have sought to make use of could turn
    26        out to be totally inadmissible.
    27
    28   MR. RAMPTON:  That is what is worrying me.
    29
    30   MR. JUSTICE BELL:  The only way around that, if both parties
    31        want to use it, is to look at a document and say:  "Right,
    32        well, it is inadmissible but we will each agree that those
    33        are to be considered admitted facts for the purpose of this
    34        case", and then each side can argue what conclusions are to
    35        be drawn from those admitted facts.  But it needs both
    36        sides, or at least the side against whom the figures are
    37        being relied on.  I mean, I am just thinking aloud at the
    38        moment.
    39
    40   MR. RAMPTON:  This is why I raised it, because it has been
    41        troubling me for some time.
    42
    43   MR. JUSTICE BELL:  One thing which does concern me is, if a
    44        point is not taken on it in the course of the hearing, and
    45        if there were then an appeal and someone new comes into the
    46        matter -- I suppose it might be said it is more likely to
    47        be someone representing the Defendants, but I do not know
    48        what might happen; from my point of view, I have to look at
    49        it as a possibility on both sides -- or thinks up some
    50        point which has not been taken, then the Court of Appeal 
    51        has just to go back to what the legal position is. 
    52 
    53   MR. RAMPTON:  My Lord, I quite agree.
    54
    55   MR. JUSTICE BELL:  So I think it has to be aired in some way.
    56
    57   MR. RAMPTON:  It has.  Quite how it gets aired is another
    58        question.  One possible solution is for us to present the
    59        Defendants with a list, as comprehensive a list as
    60        possible -- and one hopes it would be exhaustive -- of all

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