1969-HKRS30-16-29_Part07 — Page 20

Restriction

on adducing evidence as to

tibility of

nwker, etc.

of certain statements, 0.38, r. JD.

Notice required of intention to

give evidence

of certain inconsistent statements. C. 3, r. 31.

(b) that that party has failed to comply with any requiremen1 of a counter-notice relating to that statement which was served on him in accordance with rule 8.

(2) Without prejudice to the generality of paragraph (3), the court may exercise its power under that paragraph to allow a statement to be given in evidence at the trial or hearing of a cause or matter if a refusal to exercise that power might oblige the party desiring to give the statement in evidence to call as a witness at the trial or hearing an opposite party or a person who is or was at the material time the servant or agent of an opposite party.

12. Where-

(a)

a notice given under rule 3 in a cause or matter relates to a statement which is admissible by virtue of section 38B or 38D of the Ordinance; and

(b) the person who made the statement, or, as the case may be, the person who originally supplied the information from which the record containing the statement was com- piled, is not called as a witness at the trial or hearing of the cause of matter; and

(c) none of the reasons mentioned in rule 7 applies so as to prevent the party who gave the notice from calling that person as a witness.

no other party to the cause or matter shall be entitled, except with the leave of the court, to adduce in relation to that person any evidence which could otherwise be adduced by him by virtue of section 380 of the Ordinance unless he gave a counter-notice under rule 8 in respect of that person or applied under rule 10 for a direction that that person be called as a witness at the trial or hearing of the cause or matter.

13. (1) Where a person, particulars of whom were contained in a notice given under rule 3 io a cause of matter, is not to be called as a witness at the trial or hearing of the cause or matter, any party to the cause or matter who is entitled and intends to adduce in relation to that person any evidence which is admissible for the purpose mentioned in paragraph (b) of subsection (1) of section 38G of the Ordinance shall-

(a) in the Supreme Court, not more than twenty-one days

after service of that notice on him; or

(b) in the District Court, not more than seven days after

service of that notice on him,

serve on the party who gave that notice, notice of his intention to do so.

(2) Paragraphs (1) and (2) of rule 4 shall apply to a notice under this rule as if the notice were a notice under rule 3 and the statement to which the notice relates were a statement admissible by virtue of section 38B of the Ordinance.

(3) The court may, if it thinks it just to do so, allow a party to give in evidence at the trial or hearing of a cause or matter any evidence which is admissible for the purpose mentioned in para- graph (b) of subsection (1) of section 380 of the Ordinance not- withstanding that that party has failed to comply with the provisions of paragraph (1).

14. If

(2) a party to a cause or matter serves a counter-notice under rule & io respect of any person who is called as a witness at the trial of the cause or matter in compliance with a requirement of the counter-notice; and

(b) it appears to the court that it was unreasonable to require

that person to be called as a witness,

then, without prejudice to-

(Order 62 of the Rules of the Supreme Court and, in

particular, to paragraph (1) of rule 7 thereof; or

(ii) the District Court Civil Procedure (Costs) Rules, and in

particular to rule 12 thereof,

the court may direct that any costs to that party in respect of the preparation and service of the counter-natice shall not be allowed to him and that any costs occasioned by the counter-notice to any other shall be paid by him to that other party.

15. The jurisdiction of the court under paragraph (a) of sub- section (2) of section 38B, subsection (3) of section 388, paragraph (a) of subsection (2) of section 38D and subsection (1) of section 38F of the Ordinance may be exercised in chambers.

Made this 6th day of November 1970.

Ivo Rugby

Chief Justice.

Costs D. 18, r. 32.

(Cup. 4, sub. bejp.)

Komp. 316. nub, kpJ

Certain powers exercisable

in chambers. 0. 38. x. 13.