Day 262 - 13 Jun 96 - Page 53
1 given by the client, then one has to ask whether the
2 dominant purpose is for litigation.
3
4 MR. RAMPTON: Yes. The client, that is to say the client on his
5 own, perhaps even before the solicitor.
6
7 MR. JUSTICE BELL: In this case, Mr. Nicholson without the
8 involvement of Barlow Lyde & Gilbert.
9
10 MR. RAMPTON: That is not what happened.
11
12 MR. JUSTICE BELL: I appreciate that. But your case is that is
13 not what happened. If that is not what happened, if it was
14 a joint endeavour of the client and the solicitor acting
15 together, then I am not concerned with dominant purpose, of
16 litigation being dominant purpose. I am only concerned
17 with for the purpose of legal advice.
18
19 MR. RAMPTON: I accept that I probably have said too much,
20 but -----
21
22 MR. JUSTICE BELL: No, I am not being critical. I am saying it
23 so I make sure I have understand the way you put it.
24
25 MR. RAMPTON: My Lord, that is absolutely right. I agree with
26 that wholeheartedly. I have perhaps said as much as I did
27 about dominant purpose because I was misled -- that is not
28 the right word -- but I was diverted by Mr. Hall's skeleton
29 argument, he of course not having been in court and not
30 having at that stage a chance to know what the evidence
31 was. He does now. So, yes, I mean, that is my
32 submission.
33
34 So far as the period between late September and early
35 October 1989 and the issue of the writ is concerned, that
36 is absolutely right. I adopt those words gratefully, if
37 I may.
38
39 MR. JUSTICE BELL: Yes.
40
41 MR. RAMPTON: Can I then pass to the question of privilege or,
42 rather, waiver, because, assuming all this material is or
43 was privileged, it is clear that to an extent we have
44 waived the privilege in respect of some of it, and the
45 question is: how far does that waiver extend?
46
47 Can I make some summary submissions first, one that I have
48 already made. Waiver of privilege can never extend to
49 material that is irrelevant. That is so obvious that it
50 hardly needs stating.
51
52 MR. JUSTICE BELL: I have one final question on privilege.
53 I think it is almost too obvious to ask. But there is no
54 discretion whatsoever in the court there, either a
55 document -----
56
57 MR. RAMPTON: No.
58
59 MR. JUSTICE BELL: Information or a document is privileged or it
60 is not. If it is privileged, there is no question of
