Day 173 - 16 Oct 95 - Page 07

     
     1   MR. MORRIS:  We do not know Mr. Mullen agreed, do we?  We only
     2        have the word of the witness.
     3
     4   MR. JUSTICE BELL:  Yes, that is fair enough.  That is not in
     5        breach of the hearsay rule.
     6
     7   MR. MORRIS:  So I would have thought that that immediately
     8        removes 97 per cent of the objection that Mr. Rampton made
     9        on those grounds that our witnesses were reporting what
    10        they were told by someone else.
    11
    12   MR. JUSTICE BELL: No, I am sorry.  I cannot keeping giving you
    13        tutorials on hearsay.  You must look it up yourself.  What
    14        someone else says to the witness is admissible as to the
    15        fact of it being said but, subject to certain exceptions,
    16        not to the truth of what was said.  So this is evidence
    17        that Mr. Mullen agreed.  If you want to say Mr. Mullen may
    18        have been lying, then there we are.  But it is certainly
    19        admissible evidence as to Mr. Mullen's agreement.
    20
    MS. STEEL:   Why is it that it was ruled out that
    22        Mr. Nicholas Magill was not allowed to say that the
    23        employees all considered themselves very much underpaid?
    24        That is exactly the same.
    25
    26   MR. JUSTICE BELL:  Because that statement, there could only be
    27        any point in bringing that in as purported evidence that
    28        they did consider they were underpaid; therefore, it goes
    29        as to the truth of what was said, as opposed to the fact
    30        that it was said.
    31
    32   MS. STEEL:   No.  It goes to agreement with Mr. Magill, in much
    33        the same way as he -----
    34
    35   MR. JUSTICE BELL: I am sorry.  I must do my best to help you,
    36        but I cannot just have arguments with you about what the
    37        hearsay rule means.  If you are unhappy about my
    38        explanation, then by all means go and talk to a lawyer
    39        about it.
    40
    MR. RAMPTON:  Perhaps I can give a simple illustration which may
    42        lead to enlighten?  In a fraud case, a civil fraud case,
    43        usually speaking, what matters is what was said; and what
    44        you prove is what was said.  You then go on to prove, if
    45        you are a Plaintiff, you prove that it was false.  But what
    46        you have to prove first of all is what was said, because it
    47        is what was said that prompts whatever action you take upon
    48        receiving the statement.  That is precisely the same as we
    49        have here.  We have a statement that Mr. Mullen agreed.  He
    50        might have been lying through his teeth, for all I know. 
    51 
    52   MS. STEEL:  He might have not have said it. 
    53
    54   MR. RAMPTON:  But that is a matter for Mr. Mehigan to prove in
    55        evidence, whether he said it or not.  The Defendants may
    56        well tell Mr. Mehigan that he is lying; they usually do.
    57        So be it; that will be a matter for your Lordship.  What
    58        matters about it is that if Mr. Mullen said it, then it is
    59        something which governs Mr. Mehigan's conduct at the time
    60        or helps to explain it.