Day 194 - 01 Dec 95 - Page 15
1 their witnesses second calls their witnesses, the advocate
2 for the opposing party does not have to challenge
3 everything which is disputed, because the dispute is then
4 clear from the evidence.
5
6 The important thing -- although you have been forgiven for
7 not doing it in your case -- is that the person who
8 cross-examines the party's witnesses who comes first puts
9 what is challenged, so that the judge and everyone else can
10 see what is in dispute and what is not. By the time we get
11 to the witnesses who are called, as it were, in reply, one
12 should know broadly what the issues are, so formal
13 challenges do not have to be made.
14
15 MS. STEEL: I understand that, you know, it is always impossible
16 to sort of challenge everything, because you are going to
17 forget something or other. But it is just that if there is
18 no challenge at all, then it may be that, for example, at
19 the end Mr. Rampton is going to get up and criticise what
20 the witness has said for some reason or another, and attack
21 it, but he has never put that to the witness to give the
22 witness a chance to explain what they are saying.
23
24 MR. JUSTICE BELL: If there is a basis which would not be
25 apparent to the judge for attacking it, then it should be
26 put, but if it is just that the witness's recollection is
27 faulty, then the judge has what the first witness says, he
28 has what the second witness has said, which is in conflict;
29 and it is up to him to do his best on the balance of
30 probabilities in deciding which evidence he prefers.
31
32 The person who is cross-examining second does not have to
33 put: "I suggest that was wrong, I suggest that was wrong,
34 I suggest that was wrong", because that should be clear to
35 the judge that there is a conflict by the fact that there
36 is contrary evidence before him.
37
38 MR. MORRIS: It seems to me a completely naive course that the
39 reason Mr. Rampton is not challenging our witnesses hardly
40 at all is because our witnesses are all telling the truth,
41 and he knows that; and, also, because of this ruling he
42 knows that it is difficult for us to expand on points and
43 get the full truth out about the reality that our witnesses
44 have experienced.
45
46 It seems, on the one hand, we are being restricted on
47 bringing out the full story, so that you can decide for
48 yourself who is telling the truth or not; and, at the same
49 time, Mr. Rampton's tactic is not to ask any questions,
50 because he knows that more truth will come out if he asks
51 any questions. So it is like we are being -----
52
53 MR. JUSTICE BELL: I am sorry. That is a complete
54 misunderstanding of the legal procedures in civil
55 litigation in this country. If I can give you an example:
56 there has been a road accident, and someone has been
57 injured; and the issue is that the plaintiff said that he
58 stepped on to the crossing because the little green man was
59 showing to him and a red light was showing to the traffic.
60 He is cross-examined by the driver's barrister and
