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

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