Day 072 - 12 Jan 95 - Page 11

     
     1        matter of course; it is not in this division and, in this
     2        particular instance, we have not done so.  As your Lordship
     3        knows better than I, in the Queen's Bench division, as a
     4        generality, the court will only require an affidavit if the
     5        opposite party raises a reasonable ground for supposing
     6        that there is a question of whether such documents, such
     7        relevant material, might exist.  In other words, he raises
     8        a question about it, an issue, and he says to the Judge:
     9        "Look at this, my Lord.  This does suggest that something
    10        more might exist" and then the other party has to swear an
    11        affidavit saying whether it does or not.  But, my Lord,
    12        that is not this case, this particular instance.
    13
    14   MR. JUSTICE BELL:  Yes.  Mr. Morris?
    15
    16   MR. MORRIS:  Not in order of importance but in order of my
    17        notes:  The first point that Mr. Rampton made was about
    18        whether the related matters, the matters that are related
    19        to the disputes of residents apart from environment/index.html">litter, can be said
    20        to be relevant.  He said they were not pleaded but, in
         fact, it might be helpful to get out Mr. Colin McIntyre's
    22        statement.
    23
    24   MR. JUSTICE BELL:  Just remind me -- I read it through for about
    25        the fourth time just before I came into court.
    26
    27   MR. MORRIS:  Right.  It says, well, the last bit:  "The Manager
    28        assured the Council Committee that environment/index.html">litter patrols existed.
    29        This was a blatant lie which went unchallenged at the
    30        time.  However, the late night extension was refused at the
    31        request of Smith Street and Wellington Square.  I have on
    32        at least two occasions asked the Manager of McDonald's to
    33        send someone to remove the environment/index.html">litter from our pavement and
    34        doorways.  From my work with RHWRA, I know that the houses
    35        in Royal Avenue itself additionally suffer from cooking
    36        smells and from McDonald's customers using their doorsteps
    37        as a dining room or latrine.  McDonald's has brought a
    38        steady diet of pollution to an otherwise mainly residential
    39        neighbourhood".
    40
    MR. JUSTICE BELL:  But the fact that it is in a statement does
    42        not mean to say it is relevant to an issue in the case.  Is
    43        there anything in the leaflet you can point to which make
    44        these matters an issue in the case?  You cannot make
    45        something an issue in the case just by having a statement
    46        from one of your witnesses or evidence from one of your
    47        witnesses.  That is not decisive of whether it is an issue
    48        in the case.
    49
    50   MS. STEEL:   With respect, it is part of Mr. McIntyre's 
    51        evidence.  It is a related issue.  The fact that something 
    52        is not specifically mentioned in the leaflet has not 
    53        prevented it from becoming an issue in this trial, for
    54        example, CFCs and ozone depletion which is not mentioned in
    55        the leaflet.  Clearly, it is relevant.  It is relevant to
    56        the problems that residents are faced with the McDonald's
    57        opening and Mr. McIntyre considers it to be part of the
    58        problem.
    59
    60   MR. MORRIS:  It is not that we want to raise a case to call