Day 165 - 27 Sep 95 - Page 16
1
2 In this case the parts of the documents that have been
3 blanked out that we are seeking copies of is not to
4 determine the guilt of one of the parties; it is to assist
5 in testing the witness, the evidence of the witness.
6 Additionally, there is no jury in this case so there is no
7 danger -- well, in any event they are not about the witness
8 himself anyway, so they are not -- that was another
9 argument I was going to say. In terms of credit, the parts
10 that have been blanked out are not about the witness who is
11 giving evidence. Therefore, they do not go to his
12 character. They are about the evidence that is being given
13 and the reliability of the evidence that has been given,
14 the accuracy of the notes that were made at the time or
15 shortly afterwards.
16
17 I just wanted to refer again to page 673 of the judgment
18 about the limitation on discovery. Just below paragraph C
19 it says: "The existence of this limitation on the right to
20 discovery is also recognised in Ord. 26 r. 1(4), which is
21 concerned with discovery by means of interrogatories. This
22 paragraph is in the following terms:
23
24 'A proposed interrogatory which does not relate to [any
25 matter in question between the applicant and the other
26 party in the cause or matter] shall be disallowed
27 notwithstanding that it might be admissible in oral
28 cross-examination of a witness.'
29
30 The reason for this limitation on discovery is plain.
31 Discovery in an action would become gravely oppressive and
32 time-consuming if there were an obligation on a party to
33 disclose any document which might provide material for
34 cross-examination as to his credit-worthiness as a witness.
35 The present practice is a salutary one which helps to
36 keep discovery within reasonable and sensible bounds."
37
38 Again I would argue that cannot apply to a document which
39 has been ordered to be discovered but parts have been
40 blanked out because, if anything, it is the blanking out
41 that is time-consuming.
42
43 I do not know whether you have the case of Kennedy v.
44 Dodson?
45
46 MR. JUSTICE BELL: I looked at it last night but is there
47 anything particularly important in that? Quite frankly,
48 I would have thought all one needs one way or another is in
49 Thorpe.
50
51 MS. STEEL: I think that the references to Kennedy v. Dodson
52 that are in Thorpe are very brief and they do not
53 really -----
54
55 MR. JUSTICE BELL: Are you saying there is something in Kennedy
56 v. Dodson which contradicts Thorpe, casts doubt on Thorpe?
57
58 MS. STEEL: It is just they seemed to have narrowed it down for
59 Thorpe. They have kind of cut out all the bits about the
60 reason that they did not allow interrogatories in that case
