Day 263 - 14 Jun 96 - Page 30
1 was a seaman) the Plaintiffs counsel used a document which
2 was privileged in the hands of his clients, the
3 Plaintiffs. That document contained an account of an
4 inconsistent statement by the witness, but also an account
5 of a statement made out of court on a privileged occasion
6 by another potential witness, the boatswain of the ship.
7
8 What Mustill J. held was that though privilege had been
9 waived in respect of the statement by the seaman on a
10 previous privileged occasion, not so in relation to the
11 statement of the boatswain which had been incorporated by
12 reference into the document.
13
14 My Lord, there is a helpful little passage from
15 Lyell v. Kennedy at the bottom of the first column. It is
16 also, I think, cited by Hobhouse J. where he thought of the
17 cardinal citation in the General Accident case. It is from
18 Cotton L.J.'s judgment. Starting a few lines up from the
19 bottom, I will read what Mustill J. said.
20
21 "In Lyell v. Kennedy...the Court of Appeal was
22 concerned to deal with a series of complex
23 issues on interrogatories and discovery. In the
24 course of discussion on the later topic, Cotton
25 L.J. said, at p 24: 'There was this contention
26 raised, which I have not forgotten: that the
27 defendant had waived his privilege, and
28 therefore could not claim it at all. That, in
29 my opinion, was entirely fallacious. He had
30 done this, he had said, "Whether I am entitled
31 to protect them or not I will produce certain of
32 the documents for which I had previously claimed
33 privilege -- I will waive that, and I will
34 produce them," but that did not prevent him
35 relying on such protection with regard to others
36 which he did not like to produce. It is not
37 like the case of a man who gives part of a
38 conversation and then claims protection for the
39 remainder, and we think there is no ground for
40 the contention that there has been here a waiver
41 of privilege."
42
43 My Lord, the way in which Mustill J. approached this
44 question in relation to the incorporated statement of the
45 boatswain, which one might have thought at first sight the
46 privilege had plainly been waived, was, as we can see --
47 and I will not read it all -- but one can see at the bottom
48 of the first column on page 139, which is the next page, to
49 ask itself the question: has that material been deployed in
50 court; has it become part of the material before the court?
51 He answered that question in the negative. At the top of
52 the right-hand column on page 139, he said this:
53
54 "In my view this distinction is of crucial
55 importance in the present issue. I believe that
56 the principle underlying the rule of practice
57 exemplified by Bucknell v. British Transport
58 Commission is that where a party is deploying in
59 court material which would otherwise be
60 privileged the opposite party and the court must
