Day 263 - 14 Jun 96 - Page 27
1 But I do not want to say they are irrelevant if Ms. Steel's
2 argument, or Mr. Morris's, is correct, that, for instance,
3 perhaps less strongly, but by the same token, involvement
4 in the activities, the mere fact that a writ has been
5 issued does not mean to say that evidence of strong
6 involvement in London Greenpeace activities or the handing
7 out not of the leaflet complained of but some shorter
8 anti-McDonald's leaflet, was not relevant. It might add,
9 if you wanted to argue, to the impression of team
10 involvement in anti-McDonald's activities, which would
11 strengthen your arm, even though it could not be relied on
12 as publication itself, might it not?
13
14 MR. RAMPTON: I suppose it might, yes. I mean, I cannot say yes
15 or no.
16
17 MR. JUSTICE BELL: If that were right, I would not be able to
18 rule it out as irrelevant, though I might go on to say that
19 the notes and reports were privileged and there had been no
20 waiver of them.
21
22 MR. RAMPTON: It might be so. I do not feel disposed to argue
23 it at any length at all. I am quite content to leave it to
24 your Lordship. There may well be material which is
25 relevant to that consideration: what was the group
26 continuing to do vis-a-vis McDonald's? But one has to
27 remember what is actually pleaded, which is that the
28 activities of the inquiry agents ultimately persuaded the
29 group to publish the words complained of when they would
30 not otherwise have done so.
31
32 As to that, if that is the relevant question (which
33 I perceive it to be) I do not, myself, at the moment see
34 how the inquiry agents' involvement in the group could have
35 a bearing on that question. However, there it is. I have
36 said that before, and I will leave it there, if I may.
37
38 Can I then turn very briefly -- and I really will not be
39 very long -- to the question of waiver. I have perceived
40 -- and I am sure your Lordship will correct me if I am
41 wrong, but I am trying to be as quick as I can -- that the
42 point which was troubling your Lordship, or has troubled
43 your Lordship, is the same one that has troubled me,
44 namely, if you send two people to a meeting, they make
45 privileged documents as a consequence of that, you then
46 tender the evidence and the documents for one of those
47 witnesses, is it not unfair that the other side should not
48 have the full picture by having whatever material may have
49 emanated from the second witness that you do not call?
50
51 MR. JUSTICE BELL: Yes.
52
53 MR. RAMPTON: I said yesterday that I perceive that to be a
54 difficulty, as Hobhouse J. saw in the General Accident
55 case, because of the wide ramifications in principle for
56 the application of such a rule in a particular case. As
57 your Lordship said, though you may get off the hook if
58 there had been, let us say, solicitors' notes, draft proofs
59 of evidence and so on, your Lordship would making, at any
60 rate, an inroad to some extent into the existing practice.
