Day 233 - 26 03 96 - Page 48

 
 

                                                                  DAY 233
 
 
 
 
 
     1   MR. RAMPTON:  I know I have; and therefore I do so.  I just had
     2        a feeling that I had seen a recent authority in which the
     3        court had said that -- of course my obligation is to
     4        disclose documents which are in my power, but if there
     5        should arise a question whether they are in my power or
     6        not, then the further question arises:  on whom lies the
     7        burden to satisfy the court that they are or not?  I had a
     8        feeling I had seen a recent authority about that, but
     9        I could well be mistaken; it may have been something else
    10        completely.  I think I probably am wrong.  I am looking at
    11        page 458.
    12
    13   MR. JUSTICE BELL:  Yes.  If it is Rule 7, the burden is on the
    14        party seeking discovery to show it is necessary for the
    15        fair disposal of the application; and I merely rhetorically
    16        ask: is the burden not also on that party to show that they
    17        are in the power of the -----
    18
    19   MR. RAMPTON:  My Lord, if one looks at Barclay Administration v.
    20        McLelland -- I think I had that in mind, actually, and
    21        I put it the wrong way round -----
    22
    23   MR. JUSTICE BELL:  Where is that?
    24
    25   MR. RAMPTON:  It is about 10 lines down from the top of
    26        page 458.  There are digested there a number of principles
    27        stated, apparently, by the court in that case; and it is
    28        really 1C that -- perhaps it is 1C that is the material
    29        principle; and, if that is right, then your Lordship is
    30        right and I am wrong.  The burden is on the party
    31        applying.  That is quite clear.
    32
    33   MR. JUSTICE BELL:  There must be sufficient evidence that the
    34        document is in the power of the other party.
    35
    36   MR. RAMPTON:  That is right, the other party.  So, implicit in
    37        that and on the general tenor of the rule and the context
    38        in the procedure in which the rule appears or has its
    39        place, then the burden must be on the party applying to
    40        show sufficient evidence before the court will make an
    41        order.
    42
    43   MR. JUSTICE BELL:  That is what I would be -----
    44
    45   MR. RAMPTON:  I apologise for that red herring.  I must have
    46        been thinking of something else.
    47
    48   MR. MORRIS:   I have not got a copy of the White Book.  I think
    49        this is a completely illogical provision.  Does it say the
    50        obligation is on the power of the party applying? 
    51 
    52   MR. JUSTICE BELL:  Yes. 
    53
    54   MR. RAMPTON:  In fact, yes.
    55
    56   MR. MORRIS:  Mr. Rampton said yes.
    57
    58   MR. JUSTICE BELL:  It says, before I make an order when we got
    59        past the stage where you make lists of documents and one
    60        party says, "I have reason to believe that the other party
 
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