Day 263 - 14 Jun 96 - Page 33
1 list of questions was in the possession of [T]
2 whilst the interview was being conducted does
3 not of itself mean that privilege has been
4 waived by his giving evidence on the meeting.
5 Stated in bald terms, that proposition must
6 I think be correct. Mr. Evans goes on to say
7 that there is no real difference between what
8 happened here and a case in which [T] had
9 memorised the questions and put them to the
10 witness without the aid of the document. There
11 I differ from him. It seems to me that the
12 written questions were, so to speak, part of the
13 meeting. They were in a sense an agenda for the
14 meeting. They formed the basis for one-half of
15 the exchange between lawyer and the seaman.
16 Evidence to that evidence having been given by
17 the lawyer, it seems to me that privilege must
18 have been waived for those questions."
19
20 My Lord, I have to say -- and this is somewhat impertinent
21 -- I respectfully see the logic of that.
22
23 "And I think the interests of justice, which I
24 believe to underlie the authorities on this part
25 of the case, demand that the opposition and the
26 court should have an opportunity to satisfy
27 itself as to the accuracy of the evidence given
28 by the lawyer as to the way in which he
29 conducted the interview."
30
31 The judge then turned to the material which could be called
32 instructions to T.
33
34 "I find this to be in a different category from
35 the list of questions. Those instructions did
36 not play a part in the meeting. They did not
37 form part of the body of events upon which
38 I have to reach conclusions of fact. They were
39 merely part of the prior history of those
40 events."
41
42 My Lord, that last part is important, for the reason that
43 it fuels the submission, which I derive from this case and
44 also from Hobhouse J.'s judgment in the General Accident
45 case, that if one uses the word "transaction" it is to be
46 construed narrowly. It does not mean all material relevant
47 to that transaction even, or to the subject matter of the
48 transaction. What it actually means is material which, as
49 it were, may be thought to describe or convey an impression
50 of a particular event.
51
52 MR. JUSTICE BELL: But does that lead you to argue that if, for
53 instance, you called a witness to give evidence about
54 meeting A and disclose his notes of meeting A, that has not
55 waived notes which you also have made by someone else at
56 meeting A?
57
58 MR. RAMPTON: My Lord, that is certainly an argument that
59 I formally submit can be derived from this authority, both
60 by a reference to the seaman/boatswain question and by
