Day 165 - 27 Sep 95 - Page 29


     
     1
     2   MR. MORRIS:  -- or research.
     3
     4   MR. JUSTICE BELL:  All this would be a matter of argument if you
     5        were making an application for return of the document which
     6        is the form it has to take.  It only it comes out of the
     7        bundle if it is clearly irrelevant, which we have not got
     8        to arguing, or if you make a successful application for
     9        return the document.  If you succeed on that, then any copy
    10        comes out of the bundle.
    11
    12   MR. RAMPTON:  My Lord, I am not -----
    13
    14   MR. JUSTICE BELL:  Do you actually rely on it?
    15
    16   MR. RAMPTON:  Yes, I do.  It actually has some quite significant
    17        material in it, as it happens.  What it is I am certainly
    18        not going to say at this juncture.  But Mr. Morris and
    19        Ms. Steel, if they are going to make an application for the
    20        return of this document, must give your Lordship proper
    21        grounds -- if I think they are proper grounds, I will not
    22        contest it -- for saying:  "This is a privileged document".
    23          Mr. Morris, apparently, does not even know to whom it was
    24        addressed yet he says it is sent to a potential witness.
    25
    26   MR. JUSTICE BELL:  Can you tell who signed  under "in
    27        solidarity" at the bottom?
    28
    29   MR. RAMPTON:  He might even recognise the handwriting, for all
    30        I know.  He has to do it in proper form.
    31
    32   MR. JUSTICE BELL:  Mr. Morris, the point which troubles me is
    33        this, that there has been authority on the circumstances in
    34        which, if a document of one party, in respect of which they
    35        can claim privilege, falls into the hands of the other
    36        side, then the circumstances in which they can recover it
    37        are the subject of authority.  It is not just a question of
    38        saying:  "It is our document; we must have it back" or "It
    39        is privileged because it includes a communication to a
    40        potential witness with a view to preparation of the case".
    41        There is more to it than that.  You have to be able to tell
    42        me what the law is so I can apply it to whatever I find the
    43        facts are.  There might even have to be evidence on oath in
    44        relation to it.
    45
    46   MR. MORRIS:  The way I see it, the way I understand the law, and
    47        it applied when the Plaintiffs mistakingly disclosed one of
    48        their -----
    49
    50   MR. JUSTICE BELL:  Have you actually got the cases with you? 
    51 
    52   MR. MORRIS:  No, but we did have this argument before over the 
    53        document that we had.
    54
    55   MR. JUSTICE BELL:  I know and we did not actually get to argue
    56        it.  We were going to have a set piece argument with all
    57        the authorities there and arguments on one side or another,
    58        and we adjourned one afternoon until the following morning
    59        so that all the authorities could be got together and both
    60        sides could get their houses in order.  When we came back

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