Day 165 - 27 Sep 95 - Page 27
1 privileged; the Defendants must make a case that it is.
2
3 MR. JUSTICE BELL: No, if that was said, it accounts for
4 the -----
5
6 MR. RAMPTON: I do know where it came from, it came from Costa
7 Rica -- it is as simple as that -- which is where it was
8 sent, so far as I can tell. I am much a baby in these
9 matters as anybody else, but I have been looking as hard as
10 I could and as legible as it is not at the fax writing on
11 the top of the document. It is clear from that that it
12 came to us in Oak Brook. I think it came via Oak Brook to
13 us in England from Costa Rica, which is what led me to
14 suppose that it could not possibly be a privileged
15 document, otherwise it would have not have been put into
16 the hands of -----
17
18 MR. JUSTICE BELL: With that little bit of extra information, we
19 are just back where we were when it was last mentioned. If
20 you do make an application, it will be for the return of
21 the document.
22
23 MR. MORRIS: It is not as if the case lives or dies on this
24 document, but the point is it cannot be in as evidence of
25 circulation of anything if it is a communication between us
26 and a potential witness, a letter -----
27
28 MR. JUSTICE BELL: That is another point.
29
30 MR. MORRIS: That is all really, so whether the original
31 document is returned or not -----
32
33 MR. JUSTICE BELL: There are two possible applications, two
34 possible ways, in which this arises: One, you say it is a
35 privileged document and that, in accordance with authority
36 on that topic (which I cannot now recall, but I remember we
37 touched on it when Mr. Rampton was saying he wanted certain
38 documents back at one time), whether you are entitled to
39 have it returned to you so it disappears altogether from
40 the bundles, if that is what you ask for; the second thing
41 is if you do not pursue such an application so it stays in
42 the bundle, whether it is relevant and what, if anything,
43 it shows, which is an evidential argument. But the ball is
44 in your court. If it is the evidential argument, we will
45 come to it in due course. If it is you making an
46 application for its return which, if it is succeeds, means
47 we can forget any evidential argument because it will not
48 be in front of me, then it is for you to make the
49 application. You have to remind yourself of what the law
50 is in relation to that.
51
52 MR. MORRIS: I do not care whether I get the original back or
53 whatever. All I am saying is that if something is in the
54 documents and may be referred to in evidence, of course,
55 then it becomes a public document. I do not think that our
56 communication with our witnesses, or potential witnesses,
57 should be in the documents files. So, that is all I am
58 saying is it should be removed from those files. Whether
59 the Plaintiffs give us the original back or not, I am not
60 bothered about. That is the application, that it be
