Day 262 - 13 Jun 96 - Page 52


     
     1        elaborate.
     2
     3   MR. JUSTICE BELL:  A fortiori, it is because litigation is
     4        contemplated as a possible route.
     5
     6   MR. RAMPTON:  Yes.  But to use Bingham L.J.'s expression, there
     7        can be no question but that even way back in September 1989
     8        litigation was in the air.  That it should come to earth
     9        would be a regrettable outcome.  It did.  But, certainly,
    10        it was in the air.  But your Lordship is absolutely right;
    11        and if one looks at it like that, all communications by the
    12        client or his agent with the solicitor for the purpose of
    13        getting legal advice -- never mind litigation -- fall
    14        within the broad umbrella anyway.  That is absolutely
    15        right.
    16
    17        It is, however -- I interrupted myself, it matters not --
    18        it is right to tell your Lordship, as I have embarked on
    19        that, though all reports, without exception, up to the time
    20        when the writ was issued, were sent to Barlow Lyde &
    21        Gilbert, there was a small number, I think, during the
    22        latter part of 1989, when there was but one inquiry agent
    23        still in the group -----
    24
    25   MR. MORRIS:  1990.
    26
    27   MR. RAMPTON:  I mean 1990 -- that being the lady Michelle
    28        Hooker, so far as I know -- a small number of those reports
    29        were sent to Mr. Nicholson before they were sent to Barlow
    30        Lyde & Gilbert.  Those, if the question should arise, are
    31        plainly covered by litigation privilege, but my primary
    32        submission about those is that, in any event, they are
    33        completely irrelevant, since they do not bear on any
    34        question arising in this action -- interesting though, in
    35        some senses, they might be thought to be, not least perhaps
    36        because they are personal contact.
    37
    38   MR. JUSTICE BELL:  So the question of dominance does not really
    39        come in.
    40
    41   MR. RAMPTON:  No.
    42
    43   MR. JUSTICE BELL:  The difficulty with these matters is that one
    44        does not necessarily want to make findings which are
    45        binding, because one has not heard the whole of the
    46        evidence, necessarily, but one can only decide an
    47        application such as this upon the evidence and information
    48        which is available to one at the time that one has to rule.
    49
    50   MR. RAMPTON:  I quite agree. 
    51 
    52   MR. JUSTICE BELL:  And if the picture were that the instructions 
    53        were given by the client and the solicitor together, with a
    54        view to obtaining legal advice, one can forget whether the
    55        purpose is litigation or the dominant purpose.  Is that
    56        right?
    57
    58   MR. RAMPTON:  Yes, my Lord, I agree.
    59
    60   MR. JUSTICE BELL: If the picture is that the instructions are

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