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.
9
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.
17
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.
26
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.
31
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.
44
45 MR. MORRIS: I understand. I thought that applied to all -----
46
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.
54
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,
