Day 313 - 13 Dec 96 - Page 22

     
     1        result of not challenging, may be, that there is no
     2        evidence upon which one can rely if the whole of the
     3        circumstances are not such as that one can automatically
     4        draw the inference, which is that in 4 (?).  So, if you do
     5        not put something, quite apart from the question of whether
     6        you should put something to a witness, if you do not you
     7        may end up without evidence which you would otherwise get,
     8        or you may end up without a substratum from which you can
     9        draw inferences.  But I have got the point, and I have
    10        written it in on Ms. Steel's submissions.
    11
    12   MR. MORRIS:  I think you are certainly entitled to draw an
    13        inference that if someone does not challenge then they do
    14        not have -- especially if they have not brought, as has
    15        been argued, a witness that would counter what another
    16        witness is saying, if they have not got that you are
    17        entitled to draw the inference that their failure to
    18        challenge shows that they do not have any evidence to back
    19        up what they are claiming.
    20
    MR. JUSTICE BELL: Yes.  There we are.  I am not going to say
    22        anything more about it because there is absolutely no point
    23        at this stage in the trial in saying what I provisionally
    24        do or do not think, strongly, middling or weakly.  Everyone
    25        will just have to wait.
    26
    27   MS. STEEL:   OK.  I think I have dealt with points 1 to 3 under
    28        there previously, so I will not go through all that again.
    29        Point 4.
    30
    31   MR. JUSTICE BELL: What I suggest you do is go to the end of that
    32        paragraph, stop before you get to 'damages', we will have
    33        our five minute break and you can think about whether there
    34        is anything more you want to say on counterclaim.
    35
    36   MS. STEEL:   Right.  OK.  5.3(4): now, the Plaintiffs say here
    37        that they had complied fully with their obligations on
    38        discovery.  Clearly, we would say they had not complied
    39        with their obligation to give discovery since discovery has
    40        been on going throughout this trial, and generally only
         after quite a lot of efforts and applications on our parts,
    42        and strong resistance on most occasions by the Plaintiffs
    43        to giving discovery.  Also, there have been various
    44        affidavits sworn by officers of the First and Second
    45        Plaintiffs which has been contradicted by company
    46        documents, i.e. in relation to clock cards, and I did give
    47        the example of that before.  It was something I put to Mr.
    48        Nicholson.  I have not looked up the specific references,
    49        but hopefully you will remember that.
    50
    51        Or the affidavits being contradicted by evidence given from
    52        the witness box, for example about the Jungle Burger
    53        documents there was an affidavit sworn that there were no
    54        Jungle Burger documents, or something, and then, I think it
    55        must have been Mr. Cesca, but it is possible it was someone
    56        else, said that in fact there were some Jungle Burger
    57        documents in the USA that existed.  There was a file, or
    58        something...  I cannot actually remember.
    59
    60        Additionally, there were repeated assertions that the