Day 305 - 25 Nov 96 - Page 08

     
     1        to question of amendment, though in my ruling I said that
     2        I did not consider it appropriate or correct to reach any
     3        kind of decision on how reliable any admission (if any) in
     4        your affidavit was; there was merely sufficient material to
     5        justify the amendment.  I have not repeated what I said in
     6        the ruling verbatim but, if my recollection is correct,
     7        that was the gist of it.
     8
     9   MR. MORRIS:  All I am saying is that she wrote a letter as my
    10        solicitor who was under my instructions and representing me
    11        in another case.  But I am her client, and the Plaintiffs
    12        letter from the solicitors have been used in this case as
    13        evidence, and I think that -----
    14
    15   MR. JUSTICE BELL:  They have not been put in as positive
    16        evidence of matters of fact on behalf of the party who has
    17        been putting them in, unless, at least -- I am not just
    18        talking of solicitors' letters, this is any letters --
    19        unless there has been a Civil Evidence Act notice, either
    20        in its usual formal form or by word of mouth in court, so
         that the other side has had the opportunity to ask to give
    22        a counter notice, either formal or by word of mouth.
    23
    24        Anyway, I have made the position, as I see it, clear.  By
    25        all means, ask anyone about it.  But at the moment I do not
    26        see any room for compromise, I am afraid.
    27
    28   MR. MORRIS:  I cannot see, if it is about the specific matter of
    29        whether the solicitor was under instruction or not on a
    30        particular matter, then I think that is clearly something
    31        which you would not expect a Civil Evidence Act notice to
    32        have to be applied on that particular matter, on a
    33        solicitor's letter, because solicitors's letters are
    34        presumably taken to court to be factually correct about the
    35        circumstances of their client.  I think, therefore,
    36        whatever it is under, whether it is under hearsay, Civil
    37        Evidence Act, or any other matter, it should clearly be
    38        relied upon in terms of the facts stated in it about the
    39        relationship.
    40
    MR. JUSTICE BELL:  I have tried to help you by making my
    42        position clear, so that you do not just assume that which
    43        it is not right to assume.  You come back to it in your
    44        written submission or later today, if you want to.  But
    45        there we are.
    46
    47        I have tried to explain before that I cannot make my own
    48        rules of evidence, and if I made a finding which, at the
    49        end of the day, if I took into account material which is
    50        not admissible in evidence en route to making finding which 
    51        was to be vital to this case, it would be completely 
    52        pointless because that would be wrong, and, if all the 
    53        circumstances justified it, it would be a clear ground for
    54        appeal -- depending on what the end result was.
    55
    56   MR. MORRIS:  The word "produced" is not defined in that
    57        affidavit and, therefore, McDonald's construction about
    58        what it means, what they say it means, is entirely their
    59        construction; and, therefore, that is not evidence.
    60