Day 216 - 06 02 96 - Page 42
DAY 216
KEVIN HARRISON, Re-examined:
1 documents, if I can use that as an illustration, there is
2 some reason to believe that at some stage anyway they have
3 been in the possession of the Second Plaintiff and they are
4 arguably relevant. It does not matter for discovery
5 purposes necessarily that they are no longer in the
6 possession of the Second Plaintiff. It is sufficient to
7 get going, as it were, on that topic, because at some stage
8 they have been in the possession of the Second Plaintiff.
9
10 So, one looks a little further at it and when Mr. Rampton
11 comes back with his answer on that, if it is suggested that
12 there are none of those documents now, it will still be
13 open for you to argue that I should order that some
14 appropriate officer of the Second Plaintiff make an
15 affidavit saying whether they were ever in the possession,
16 custody or control of the Second Plaintiff and, if they
17 were, what has happened to them, so that they are no longer
18 -- you can follow all that in argument in due course.
19
20 However, if it is a situation where Mr. Rampton was saying
21 there are not any documents and there is either no reason
22 to believe that there ever were any, or there is reason to
23 believe there were some but it is perfectly possible to see
24 how they may no longer exist, then you have to consider
25 whether it is worth pursuing any application for specific
26 discovery or not. If you want to take the time, as you
27 probably know, it is Order 24, rule 7. You will find that
28 in the White Book. It has some notes to it: "In order to
29 make an application for specific discovery, an affidavit is
30 normally required from the person making the application".
31 In fact, the notes to the Order and rule say that it is
32 required. But when one is well into a case like this,
33 Mr. Rampton may not be too concerned with an affidavit from
34 you, provided I have material from which I might have good
35 grounds for supposing that the documents once existed and
36 that they would have some relevance.
37
38 So, what you have to decide in the case is whether it
39 matters enough to your conduct of your case to make an
40 application for specific discovery, either informally to
41 start with by raising the subject so we can discuss it for
42 a while, or, if you are not satisfied with that, by making
43 a formal application to me.
44
45 Having had so much oral evidence and a certain amount of
46 documentation, you may think where there is any doubt in
47 relation to employment practices there is really no need to
48 go further. But that is entirely a matter for you.
49
50 What I suggest you do is if there are documents which you
51 think there is a good reason to believe that McDonald's
52 have which would be of real use to issues on employment
53 practices, then raise it when Mr. Rampton tells me what the
54 situation is so far as the Heathrow documents we discussed
55 the other day are concerned.
56
57 MS. STEEL: Is it possible to have the five minute adjournment
58 because our witnesses want to leave and -----
59
60 MR. JUSTICE BELL: Yes. What are you proposing to do for the
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