Day 262 - 13 Jun 96 - Page 43
1 to say, which we have not preferred evidence about, had
2 said, "Oh, well, this McDonald's campaign has really run
3 its course, let's forget it", that would be relevant.
4 Then, very likely, we would have proffered it in evidence.
5 But, in fact, there is no such occasion.
6
7 The occasions which have not been revealed (if I may put it
8 like that) are occasions on which, as I have said, nothing
9 relevant to the issues in this case took place; neither
10 Mr. Morris, nor Ms. Steel, nor any discussion, negative or
11 positive, about the McDonald's campaign.
12
13 The overall activities of the group are, in our respectful
14 submission, wholly and completely irrelevant as an issue on
15 their own. All that matters is what the group was doing
16 through 1990 or thinking or saying about McDonald's. That
17 is what our evidence is directed to.
18
19 My Lord, that is all I have to say about relevance. May
20 I now pass on to dominant purpose?
21
22 MR. MORRIS: Could we just have a couple of minutes' break --
23 not a break, but a couple of minutes to just, you know,
24 catch up with our notes?
25
26 MR. JUSTICE BELL: Just take a moment. (Pause) Yes.
27
28 MR. RAMPTON: My Lord, can I start by saying what I believe the
29 correct test for determination of dominant purpose is?
30
31 MR. JUSTICE BELL: You had better lead into dominant purpose,
32 because I have not -- I mean, obviously I know a bit about
33 that, and I remember cases like Waugh, and so on. But
34 I would like you to set it, if you could, in the context of
35 this case, because Mr. Hall, in his skeleton -- are you
36 talking of dominant purpose relating to proceedings or just
37 legal advice generally, or both?
38
39 MR. RAMPTON: No, my Lord. Obviously, they are connected. But
40 what I am talking about is what Style and Hollander and,
41 indeed, Bingham L.J. in Ventouris v. Mountain, calls
42 "litigation privilege"; that is to say, not the broad
43 category of client and solicitor, which is all protected,
44 but documents generated for the particular purposes of
45 actual or contemplated litigation.
46
47 MR. JUSTICE BELL: Yes. I merely ask because Mr. Hall said that
48 he had understood that you were not claiming legal advice
49 privilege, which was not my understanding.
50
51 MR. RAMPTON: No, that is not right at all. I claim both sorts
52 of privilege.
53
54 MR. JUSTICE BELL: Yes.
55
56 MR. RAMPTON: I should have thought it was plain beyond any
57 reasonable argument that if a document is created by or on
58 behalf of a client for submission to the solicitors, that
59 is ordinary legal professional advice privilege.
60
