Day 262 - 13 Jun 96 - Page 68
1 MR. HALL: Yes. I could not possibly argue that any of the
2 authorities that I have read is on all fours with this
3 case. Indeed, comparing between the different authorities,
4 it is difficult to argue that any of them are on all fours
5 with each other.
6
7 The difficulty that that leaves any court with is
8 determining what are the appropriate general principles to
9 apply. In my respectful submission, the first one is to
10 determine what is the nature of the relationship between
11 the various groups on the Plaintiffs' side to see whether
12 or not it is such a relationship that could attract the
13 claimed privilege.
14
15 The second area for consideration is what was the material
16 time for you to consider in relation to these documents.
17 I make the next point as a general observation, although
18 I do recall at some point reading some reference to it in
19 an authority. It is easy now, a number of years into a
20 case -- certainly several years since the litigation
21 began -- to look back and say, well, the dominant purpose
22 was this litigation. But, in doing so, it easy to mislead
23 oneself into thinking that at the time that was the
24 dominant purpose and, to some extent, the process that has
25 to be gone to is to identify what, in fact, happened at the
26 time and what was the relevant parties' intent. That is
27 why I invite your Lordship to consider this particular
28 authority concerning material time, and it was clear in
29 that case that the material time was when the report was
30 commissioned and when the reports were produced. Clearly,
31 the court had to put out of its mind the fact that
32 litigation followed. The Plaintiffs claimed that
33 litigation was the dominant purpose, but then that is with
34 the inevitable benefit of 20/20 vision that only hindsight
35 can give you.
36
37 I would repeat that it really is a matter for the
38 Plaintiffs to have adduced evidence as to what was in the
39 minds of the relevant parties at the material time, rather
40 than rely upon the hindsight that Mr. Nicholson came to at
41 the end of his evidence on this point. As I understand it,
42 there were some three or four pages prior to that
43 particular answer where he has -----
44
45 MR. JUSTICE BELL: I do not want to trouble you necessarily with
46 the evidence because, if need be, Ms. Steel and Mr. Morris
47 can tell me about that tomorrow morning. But if I were to
48 think that the purpose of commissioning the investigation
49 was to identify those individuals who were responsible for
50 publication in order to stop further publication by
51 proceedings if publication persisted, despite any
52 solicitors' letters, then would the investigations and any
53 subsequent notes and reports be covered by privilege?
54
55 MR. HALL: Not under content, in my respectful submission. It
56 depends on how strong that purpose was. If the Plaintiffs
57 were, prior to the instruction of the inquiry agents or the
58 production of the reports, determined that there would be
59 litigation, then that would clearly be the dominant
60 purpose. But if they were not so determined, then that
