Day 158 - 19 Jul 95 - Page 09
1 sensible and proper, because otherwise the whole thing
2 degenerates into complex, unresolvable, time-consuming and
3 unfair practices. That is why we believe that the judge
4 does have that which we have demonstrated, the discretion,
5 which -- I cannot remember; I think it was Order 52 rule 10
6 and the Litigants in Person Act.
7
8 The record of the evidence, which is the transcript, is not
9 just for questioning that witness the next day; it is also
10 for preparing questions for future witnesses and for
11 evaluating exactly how far our case has progressed and the
12 other party's case has been damaged, or whether there is a
13 need to go into certain matters or whether that would be
14 inadvisable in the light that our case is already proven or
15 established, we believe; and, therefore, the transcripts
16 are really an absolutely essential tool, where they exist.
17
18 I mean, we could argue that they should be available in all
19 cases, where it is possible to make them available, but
20 that is not the application. The application is here a
21 transcript does exist and the discretionary powers of the
22 court should be used to ensure equality on both sides at no
23 cost to either the public or the Plaintiffs, if the
24 Plaintiffs were ordered to disclose them, because we could
25 photocopy them ourselves and give the original back. But
26 if that particular order is not given, then public funds
27 should be used to pay for the transcripts.
28
29 Maybe in terms of the saving of public funds, if an order
30 was to be made, the Plaintiffs could be asked, on saving
31 costs, whether they could provide a copy rather than it
32 having to be paid out of the public purse, which would,
33 presumably, be a voluntary thing they could do in that
34 circumstance.
35
36 The coach and horses argument, I am not sure, if our
37 application succeeds, whether it does drive a coach and
38 horses through Order 68, rules 1 and 5. It cannot do,
39 because if a power is discretionary, then it is exercised
40 when the circumstances demand it, although the discovery
41 matter is discretionary, although it may depend on a
42 particular application at a particular time and whether the
43 judge orders -- whether he finds the application has merit
44 or not. Obviously, if it does have merit, then the
45 discovery would be ordered.
46
47 But, in any case, I do not think we have to deal with
48 that. It is a sort of scare tactic to say: "Well, we
49 cannot do what is right and proper and legal, because it
50 might affect a lot of people", who are also, presumably,
51 being denied a right, proper, legal and fair decision on
52 the same grounds, that it would affect other people. That
53 cannot be right in law. That is all I have to say.
54
55 MS. STEEL: There are just a couple of things I wanted to say.
56 In relation to the letter to the Lord Chancellor, as far as
57 I can see, there would only be one reason why the
58 Plaintiffs are writing to the Lord Chancellor, and that is
59 to try and persuade them from providing us with the
60 transcripts or providing the funds for the transcripts.
