Day 233 - 26 03 96 - Page 50
DAY 233
1 power, possession and control over those documents.
2
3 MR. RAMPTON: My Lord, can I clear up the confusion which
4 I created. I have not taken leave of my senses. There is
5 something that I remembered. It comes from the case of
6 Dolling-Baker v. Merrett [1990] 1 W.L.R. 1205, which was
7 in the original bundle of authorities.
8
9 MR. JUSTICE BELL: Yes, it is in my room.
10
11 MR. RAMPTON: Yes, it is, my Lord. What I had in mind was --
12 and I apologise for the confusion and it is completely
13 different -- where the court has, as it were, accepted that
14 the documents are prima facie disclosable in the sense that
15 they are relevant and that they are within the possession,
16 custody and power of the parties, then, as your Lordship
17 has just observed, under rule 8 of Order 24 it has a
18 discretion whether to order the discovery for the fair
19 disposal of the action or for the saving of costs. Under
20 rule 8, where the wording is, "The court, if satisfied the
21 discovery is not necessary", under that rule the burden is
22 on the party objecting giving the inspection.
23
24 MR. JUSTICE BELL: Yes, I understand that.
25
26 MR. RAMPTON: That is quite different, whereas under rule 13 it
27 has the same wording as is set out in that part of the
28 White Book we just looked at. "The court will not order
29 discovery unless it is of the opinion that the order is
30 necessary", that is 13(1), and there the burden is on the
31 party applying.
32
33 MR. JUSTICE BELL: Yes.
34
35 MR. RAMPTON: So, that is what I had in mind and it is -----
36
37 MR. JUSTICE BELL: But that does not change the impact of the
38 notes on page 458.
39
40 MR. RAMPTON: No, it does not. That is why I am apologising.
41 I confused the two issues. The burden only shifts to me at
42 a point where the Defendants have satisfied your Lordship
43 that the documents exist, that they are relevant and that
44 they are within my possession, custody or power. Then I
45 have to satisfy your Lordship that their production is not
46 necessary.
47
48 MR. JUSTICE BELL: Is there anything more you want to say before
49 we go on to 9 and 10?
50
51 MS. STEEL: Yes. The bit that I was looking for about the map,
52 which, looking at it now, it is ambiguous, is on day 219 -
53 the yellow flashes, I am talking about, and the list from
54 which they were prepared. Day 219 which is 22nd February.
55 On page 66 I asked Mr. Cesca: "You mentioned about
56 Mr. Morganti provided you with an outline of where all the
57 ranches were, or something, from which this map was
58 prepared, or the yellow flashes were marked?" Mr. Cesca
59 said, "Yes." Then I said, "Right. What did that consist
60 of? Was that a single page, or was that", and he said,
50
