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

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