Day 111 - 30 Mar 95 - Page 23

     
     1        as I can, is that unless documents are not available (which
     2        it appears these may be because they may, in fact, be on
     3        route to you at the moment), the witness cannot give oral
     4        evidence of their contents.  You may well at the end of the
     5        day be able to satisfy me that they are not available to
     6        you.
     7
     8        I cannot change the law just because it might be
     9        convenient.
    10
    11   MS. STEEL:  I do not understand why it is always different for
    12        us because Mr. Bennett referred to, as Dave said, stacks of
    13        documents which we have not seen which he could have
    14        produced.
    15
    16   MR. JUSTICE BELL:  Give me a particular document?
    17
    18   MS. STEEL:  He said this, that and the other record which were
    19        not produced in court.  He was allowed to do that.
    20
    MR. JUSTICE BELL:  There has certainly been some reference from
    22        time to time to what might be the contents of documents
    23        which certainly I knew were not available, but the fact is,
    24        and I really have lost count of how many times I have said
    25        this to you, the law is not decided on this basis.  The law
    26        of evidence is not decided on this basis:  "Well, the other
    27        side got away with something like this a few days ago, so
    28        we should be allowed to get away with it now".
    29
    30        Even if that were true, it would not help me decide whether
    31        evidence is admissible at a point where an objection is
    32        taken.
    33
    34   MS. STEEL:  Yes, but we did object.  We asked for the documents
    35        to be produced in court and they were not.
    36
    37   MR. JUSTICE BELL:  It may well be that they were not available,
    38        but that does not help you now, Ms. Steel.  You have a fair
    39        bit of ground to cover.  It might well be that Ms. Hovi
    40        might be finished today; I just do not know.  What
         I suggest is you go on but not ask her about what she read
    42        in the document, at least which there is some expectation
    43        of you being able to get hold of.
    44
    45        If you want to ask her about the contents of a document
    46        which you do think is on the way to you, but you have not
    47        been able to get hold of, explain to me what efforts you
    48        have made to get hold of, and then I will decide the
    49        secondary evidence of it, that is Ms. Hovi's recollection
    50        of its contents is admissible.  We may have to have a look 
    51        at Phipson about that. 
    52 
    53        Remember, secondary evidence is something I have raised
    54        myself about three or four weeks ago, partly so that you
    55        would be aware of the secondary rule, if and when any
    56        witness called on behalf of the Plaintiffs came to speak of
    57        the contents of a document because, for all I know, you
    58        were not aware of any secondary evidence rule until I
    59        mentioned it; I just do not know.
    60