Day 104 - 15 Mar 95 - Page 03

     1   MR. JUSTICE BELL:  No, I am grateful for the assistance,
     2        Mr. Rampton.  You do not need the leave of the court, as
     3        Mr. Rampton has said, to issue a subpoena duces tecum which
     4        is merely Latin for "you bring with you".  The person upon
     5        whom it is served can apply to the court to set it aside if
     6        he or she does not want to come and there is any issue
     7        about that, and if there is any issue, then I have to
     8        decide it.
    10        But let us suppose for a moment the person does not take
    11        that step:  What happens is the person will answer to the
    12        subpoena and come with the documents and will be called
    13        into the witness box and will produce the documents.  You
    14        do not have the opportunity to see the documents or talk to
    15        the witness beforehand, unless they are prepared
    16        voluntarily to let you see the documents.
    18        What I suggest you do in one of the breaks is take this
    19        back and photograph the rest of what you want, but we are
    20        not dealing with a party to the action, so you have to
    21        follow the formalities.  People who are not parties to the
    22        action have constitutional rights, just like the rest of
    23        us, and I cannot bind them to do things while arbitrating
    24        in this action, save according to the strict process of
    25        law.
    27   MR. MORRIS:  I would have thought (and I might be wrong) that
    28        the court itself would have the power to order documents to
    29        be produced without what you might call the rigmarole of
    30        writs or affidavits.
    32   MR. JUSTICE BELL:  Not against the third party -- by "third
    33        party" I merely mean somebody who is not party to the
    34        litigation -- save as provided by the subpoena procedure in
    35        the personal injury.  The provisions in the Act of
    36        Parliament which you, first of all, refer to which relates
    37        only to personal injury cases were introduced because a
    38        situation has frequently arisen where people who were not
    39        parties to the personal injury action, i.e. neither the
    40        plaintiff who was suing for damages or the defendant who
    41        was being sued had documents of various kinds.  The most
    42        typical example was the one I started to give yesterday,
    43        that someone might have the plaintiff's medical records.
    45   MR. MORRIS:  I understand.  I thought that applied to all -----
    47   MR. JUSTICE BELL:  The plaintiff did not have his own medical
    48        records; the lorry driver who ran him over certainly did
    49        not.  So, you had to have a procedure which was less
    50        cumbersome than having to subpoena an officer of the Health 
    51        Authority to bring them to court whereby you could in 
    52        appropriate circumstances order them to be disclosed 
    53        anyway.
    55        That was one situation but it was brought in to deal with a
    56        particular problem.  What is left to you, since this is not
    57        a personal injury action, subject to you drawing to my
    58        attention some provision which I do not have in mind at the
    59        moment, is the normal subpoena, subpoena procedure.  What
    60        I do not have is any right, as a Judge hearing your trial,

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