Day 263 - 14 Jun 96 - Page 29
1 the first time. It was brought in by Mr. Hall when he
2 cited, out of context, a passage from it at the top of
3 page 1265 in Konigsberg (?). My note I wrote at the time
4 when Mr. Hall made that submission was this: but one has
5 to look at the actual decision, which is what I am now
6 asking your Lordship to do.
7
8 My Lord, I will read the headnote, it is reported in the
9 Commercial Law Reports for 22nd June 1981. The reference
10 is [1981] Commercial Law Reports, 138.
11
12 MR. MORRIS: I thought it was Konigsberg? Sorry, not that case.
13
14 MR. JUSTICE BELL: Nea Karteria.
15
16 MR. RAMPTON: Nea Karteria Maritime Co. Ltd. v. Atlantic & Great
17 Lakes Steamship Corporation and Cape Breton Development
18 Corporation and Others (No. 2).
19
20 "In dealing with claims that the Plaintiffs had
21 waived privilege in respect of certain documents
22 Mustill J. held that:
23
24 where a party deploys in court material which
25 would otherwise be privileged, the opposite
26 party and the court must have an opportunity of
27 satisfying themselves that what the party has
28 chosen to release from privilege represents the
29 whole of the material relevant to the issue so
30 that:
31 (1) where a party puts to a witness in
32 cross-examination a previous statement of the
33 witness in which he made reference to a
34 statement of another person in respect of which
35 privilege could be claimed that latter statement
36 has not thereby become part of the material
37 before the court and so remains privileged...."
38
39 My Lord, that, in itself, knocks on the head the knock-on
40 argument of the Defendants, in one sentence.
41
42 "(2) where a lawyer gave evidence that he had
43 conducted an interview on the basis of a list of
44 questions prepared by the Plaintiffs' solicitors
45 privilege had thereby been waived in respect of
46 those questions."
47
48 If I may pause there. Suppose then, for example,
49 Mr. Bishop had gone on to one of these meetings about which
50 he has given evidence with an agenda of some kind or some
51 preparatory notes, it is very likely that they, too, would
52 have been disclosable.
53
54 My Lord, the facts are somewhat complicated, not least
55 because the reporter has, I think, muddled up what actually
56 happened. That is a deduction from reading the body of the
57 report. Can I summarise it?
58
59 A witness for the Defendants was cross-examined by counsel
60 for the Plaintiffs. In cross-examining that witness (who
