Day 262 - 13 Jun 96 - Page 67


     
     1             which claim attention, I have come to the
     2             conclusion that the court should state the
     3             relevant principle as follows: a document which
     4             was produced or brought into existence either
     5             with the dominant purpose of its author, or of
     6             the person or authority under whose direction,
     7             whether particular or general, it was produced
     8             or brought into existence, of using it or its
     9             contents in order to obtain legal advice or to
    10             aid in the conduct of litigation, at the time of
    11             its production in reasonable prospect, should be
    12             privileged and excluded from inspection."
    13
    14        The words I emphasise there are "at the time of its
    15        production".
    16
    17   MR. JUSTICE BELL:  Yes.  Can I draw a line after "legal
    18        advice"?  I mean, it may make no difference in this case,
    19        but provided it is produced or provided it is brought into
    20        existence, the dominant purpose of obtaining legal advice
    21        or the dominant purpose of conducting or aiding in
    22        conducting of litigation which was at least in reasonable
    23        prospect at the time.
    24
    25   MR. HALL:  Yes.  It is at the time of its production.
    26
    27   MR. JUSTICE BELL:  Yes.
    28
    29   MR. HALL:  That point is developed a little later, halfway
    30        through paragraph E.
    31
    32             "To begin with, it seems to me, both on the
    33             facts which I have recited and on the
    34             unchallenged statements in the affidavits, to be
    35             quite unarguable that, at the material time,
    36             when the reports were commissioned and brought
    37             into being, litigation was not in reasonable
    38             prospect."
    39
    40
    41        A clear reference there to "at the material time" being
    42        referable in that case to when the reports were
    43        commissioned and brought into being.
    44
    45        The complication, of course, in this case for your Lordship
    46        is the length of time over which such a large number of
    47        reports were, in fact, brought into being.  However, in my
    48        respectful submission, the material time is some time
    49        between July 1989 and September or October 1989.
    50 
    51   MR. JUSTICE BELL:  I have just read the paragraph at the bottom 
    52        of page 173.  I suppose I could ask myself whether what 
    53        Oliver L.J. canvassed there is analogous to the situation
    54        here or not.
    55
    56   MR. HALL:  Yes, yes.  But in respect of -----
    57
    58   MR. JUSTICE BELL:  For "cause of fire" substitute "the identity
    59        of the people responsible for distributing the leaflet".
    60

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