Day 119 - 02 May 95 - Page 27
1 your favour which I appear to have overlooked. He will
2 draw it to my attention. He will then argue, I have no
3 doubt, as strenuously as he thinks fit on behalf of
4 McDonald's, but he will draw it to my attention, but I do
5 not suppose Mr. Rampton pretends to be omniscient anyway.
6 So, you have got to do some homework on the theory of it
7 yourself.
8
9 (Luncheon Adjournment)
10
11 MR. JUSTICE BELL: There is one thing I should mention again.
12 My recollection should be checked when you were talking
13 about the admissibility as evidence against McDonald's of
14 what managers might have said. It might be worth thinking
15 about that in relation to Civil Evidence Act Notices,
16 because the categories of case where, having served a
17 notice, you are not obliged to then call the witness if
18 there were a counter notice -- as we have mentioned before,
19 dead, beyond the seas, unfit, cannot identify or find the
20 person concerned despite the use of reasonable diligence,
21 which was the point I was making before 1 o'clock; I think
22 the other one is where the person could not be expected to
23 have any useful recollection of what was in the statement
24 -- the court has an overall discretion to allow a
25 statement to be put in evidence even if a valid counter
26 notice has been given.
27
28 There have been cases where the fact that the person who
29 made the statement was the servant or employee of the
30 opposing party; it is not black or white. I think it just
31 has to be judged in the exercise of the court's discretion
32 in the circumstances of the particular case. That is quite
33 apart from the fact as to whether an admission can be held
34 against the employer of someone who is in a sufficient
35 position of responsibility.
36
37 All I am doing is mentioning this so that you are aware
38 that there may be a point in there somewhere. I do not
39 know whether it will become a matter I have to make a
40 decision on or not. It is just in case you are not aware
41 that there is some more on this.
42
43 MR. MORRIS: Yes. My understanding of the position was that
44 someone that is a representative of a company at whatever
45 level, then what they say would be evidence. Obviously,
46 the higher up they are, the greater the weight would be
47 placed on them.
48
49 MR. JUSTICE BELL: All I am saying is I think it is rather more
50 sophisticated than that. So, the things you have to be
51 alert to is whether in the case of the particular statement
52 you had in mind it can be treated as a statement or
53 admission of either of the McDonald's companies concerned
54 in this case, that is first of all; secondly, whether, even
55 though a counter notice can be served on you, if you give a
56 Civil Evidence Act Notice because the person is perfectly
57 alive, fit and well, can be traced, is in England and has a
58 perfectly good recollection of the matter, so you have no
59 basis to avoid a counter notice, then the court may
60 exercise its discretion to let you put the statement in
