Day 148 - 05 Jul 95 - Page 36
1 does not add anything at all. We come to Harold Brown's
2 Civil Evidence Act notice in due course.
3
4 MR. MORRIS: Yes, but the point is, with respect, it does add
5 something because the witness knows that there is evidence
6 before the court, whether it is considered at the
7 beginning, the middle or the end of the trial in detail,
8 that someone did slip over.
9
10 It may not be proved that someone slipped over. It may be
11 that if the person denies it, you have to decide who is
12 right and who is wrong. But, the point is, as I am sure
13 that Mr. Rampton and anybody else who has done
14 cross-examination knows, that it is remarkable how much a
15 witness can remember if they think that there is going to
16 be evidence brought before the court, or there has been, to
17 say the contrary of what they would like to say.
18
19 MR. JUSTICE BELL: I think you are just wrong about that. If
20 Mr. Rampton can find chapter and verse for it, well and
21 good. But I am sorry to keep referring to 32 years in
22 litigation, but never in 32 years of litigation have I had
23 the party whose case comes second obtain leave to put their
24 Civil Evidence Act statements in at an early part of the
25 case merely so that they can put to a plaintiff's witness
26 in cross-examination: "Evidence has been given to this
27 effect; what do you say?"
28
29 It is just not legitimate. Your witnesses come after the
30 Plaintiffs' witnesses. I am prepared to change that; in
31 fact, it was my idea to change it so that we did it topic
32 by topic, because I thought you could manage things better
33 that way. But it does not enable you to put your Civil
34 Evidence Act notices in as evidence ahead of the
35 Plaintiffs' evidence on that topic.
36
37 MS. STEEL: I do not know what happens normally in court cases,
38 but it strikes me that there has been a lot of evasion of
39 answering questions by the Plaintiffs' witnesses on the
40 grounds that there is no evidence of this, that or the
41 other. There is a specific line that keeps coming up:
42 "Oh, this is a hypothetical situation; you cannot show me
43 any evidence that this has happened". That is always going
44 to be the case if our evidence comes second but, surely,
45 normally in cases that is not what happens.
46
47 MR. JUSTICE BELL: Yes, that is not an unusual situation at
48 all. It happens day in and day out in the courts in this
49 building and around the country. The proper thing to do is
50 leave it there, call your evidence in due course, and at
51 the end of the day say to the judge: "You have heard all
52 the evidence now. Prefer ours on that and we invite you to
53 draw the conclusion that the Plaintiffs' witness was being
54 evasive and unhelpful on that point".
55
56 There is nothing unusual about this case at all. It
57 happens time and time again. It is a perfectly typical
58 situation. What it does not entitle you to do is lead to
59 what you say is the evasive action by asking to put your
60 evidence in before the Plaintiff has completed its case.
