Day 255 - 23 May 96 - Page 54
1 MR. JUSTICE BELL: I have. They are headed "Lists of
2 Authorities on Waiver of Privilege"; are they actually on
3 waiver or are they on -----
4
5 MR. RAMPTON: No, those authorities are all on waiver. The
6 textbook at the bottom, which is probably the best modern
7 textbook on discovery, contains both the principle about
8 what is privileged and also the principle about what
9 constitutes waiver. I can tell your Lordship, perhaps,
10 what is the relevant part. There is a whole chapter on
11 legal professional privilege, which is chapter 7.
12
13 MR. JUSTICE BELL: There are obviously bits in the main
14 textbooks like Cross on Evidence. I have not looked in
15 Phipson.
16
17 MR. RAMPTON: There are. To be quite honest, neither the White
18 Book, which is dealing only with documents and is,
19 therefore, as is to be expected since it is dealing with
20 discovery which is only a limited aspect of legal
21 professional privilege, nor any of the main textbooks like
22 Phipson, for example, is half as thoughtful or, indeed,
23 detailed as the account to be found in Style and Hollander,
24 which is a modern textbook even now in its Fifth Edition.
25 This is the 1995 Edition. The chapter is on legal
26 professional privilege, chapter 7. If I say that the whole
27 chapter bears reading, well, I mean it; it does.
28
29 MS. STEEL: What is the name of the book?
30
31 MR. RAMPTON: It is called Style, S-T-Y-L-E. Christopher
32 Style. It is written on the list.
33
34 MS. STEEL: We have not been given a list.
35
36 MR. MORRIS: Or any authorities.
37
38 MR. RAMPTON: So sorry. There you are. (Handed). It is the
39 last name on the list. The chapter on legal professional
40 privilege is chapter 7, which starts at page 161. For
41 present purposes there is a useful section 7.3, Litigation
42 Privilege; that is to say, privilege which arises when
43 litigation is contemplated or in existence. That starts on
44 page 174. That deals very clearly with communications
45 between the client and a third party in which the solicitor
46 is not, at that stage, involved and may never be involved,
47 provided the litigation is pending or contemplated.
48
49 Then, my Lord, the part on waiver is the whole of chapter 8
50 starting on page 213 and, in particular, for the purposes
51 of this part of this case, there is an illuminating section
52 8.8 on page 224 headed "Waiver of Collateral or Associated
53 Documents". It is when I looked at that and the
54 authorities which it cites that I realised how little
55 I knew about the topic. Phipson, Mr. Atkinson is just
56 saying, is actually not very good on this topic; we do not
57 think, anyway.
58
59 MR. JUSTICE BELL: The only thing I would like to ask is, I can
60 see that the platform to an argument might be to suggest
