Day 262 - 13 Jun 96 - Page 74
1
2 The wife applied to exclude the solicitor's affidavit and
3 it was held, dismissing the application:
4
5 "... that although the bankrupt and his wife
6 were joint clients of the solicitor in relation
7 to the transaction concerning the matrimonial
8 home, the wife, by revealing what had been said
9 by the solicitor as to whether the transaction
10 was a sale or a gift, had chosen to lift the
11 veil of privilege in part, and fairness required
12 that it should be lifted in whole".
13
14 On page 1265 of the report, the judgment of Mr. Justice
15 Peter Gibson, paragraph B, the authority of Nea Karteria is
16 referred to. From the judgment of Mr. Justice Mustill the
17 following is cited:
18
19 "'Where a party is deploying in court material
20 which would otherwise be privileged, the
21 opposite party and the court must have an
22 opportunity of satisfying themselves that what
23 the party has chosen to release from privilege
24 represents the whole of the material relevant to
25 the issue in question. To allow an individual
26 item to be plucked out of context would be to
27 risk injustice through its real weight or
28 meaning being misunderstood'".
29
30 I put that down as a marker. There is a further authority
31 upon disclosure in relation to allowing a full argument at
32 a later point. Further down that page, paragraph F,
33 Mr. Justice Gibson says as follows:
34
35 "Mr. Lambie referred me to Lyell v. Kennedy
36 .... for the proposition that the waiver of
37 privilege in respect of some documents for which
38 privilege has been claimed does not prevent a
39 claim for privilege being maintained in respect
40 of the remainder. Of course, that is correct
41 when the documents are not sufficiently
42 connected."
43
44 My submission is this. In order to determine whether or
45 not the Plaintiffs' claim to privilege in relation to the
46 documents that they have not disclosed is a valid claim,
47 your Lordship has to consider whether or not those other
48 documents are sufficiently connected. There is,
49 unfortunately, no further guidance that I can find in that
50 report upon how a court should determine whether or not a
51 document is sufficiently connected. But, in the context of
52 this case, it would be appropriate, in my submission, to
53 hold that the documents, shall we say the notes made by the
54 seven agents formed a body of information from which the
55 Plaintiffs, perhaps through their solicitors, have picked
56 the parts which, perhaps, most assist themselves to draft
57 reports and, later, statements to be used in evidence.
58
59 MR. JUSTICE BELL: What is the distinction, then, between notes
60 or reports and witness statements? If I can go back to my
