Day 262 - 13 Jun 96 - Page 62


     
     1        putting it in the alternative because, as I understand it,
     2        there is evidence that some of the agents were
     3        self-employed and some were employed.
     4
     5   MR. JUSTICE BELL:  Yes.
     6
     7   MR. HALL:  Creating a subtle, but perhaps important, difference
     8        if your Lordship takes the view that the documents or any
     9        ruling you may make about the documents is divisible.
    10
    11        In addition to the inquiry agents, you have the Plaintiffs,
    12        in the form of Mr. Nicholson; and, in addition to him, you
    13        have the solicitors acting on behalf of the Plaintiffs.
    14        There are, therefore, four separate groups to consider and
    15        the relationship between them.
    16
    17        Let me say something, first of all, about the Plaintiffs'
    18        solicitors.  A brief view of any brochure from any firm of
    19        solicitors these days will clearly disclose that solicitors
    20        are engaged in a wide range of activities on behalf of
    21        their clients, not merely the giving of legal advice, nor
    22        merely the instigation or defending of litigation.  The
    23        mere fact that the Plaintiffs' solicitors were involved in
    24        any of these discussions concerning the product of the
    25        agents is neither here nor there.  If they were engaged for
    26        the purpose of giving legal advice, or that was the
    27        dominant purpose in relation to litigation, then I would
    28        have to concede that the general point is already made.
    29        But if they were there or may have been there for other
    30        reasons -- for example, to advise on tactics, to advise on
    31        the most appropriate firm of inquiry agents to engage, or
    32        whatever reason they may have engaged -- then of course
    33        that is something which may put the Plaintiffs outside, or
    34        at least on the margins, of the claim of privilege.
    35
    36        I would invite your Lordship to consider the authority of
    37        Alfred Compton Amusement Machines Ltd. v. Commissioners of
    38        Customs and Excise, [1974] A.C., 405.
    39
    40   MR. JUSTICE BELL: Yes.
    41
    42   MR. HALL:  That was a complex matter involving tax issues. If
    43        I may read from just a small part of the headnote on
    44        page 406:
    45
    46             "(2) (Viscount Dilhorne dissenting) that
    47             professional privilege did not attach to the
    48             memoranda for the first and immediate purpose
    49             for which those documents were obtained or came
    50             into existence was to assist the commissioners 
    51             to ascertain the wholesale value of the goods in 
    52             question in the manner prescribed by the Act." 
    53
    54        It may take a rather more detailed reading of the case to
    55        ascertain precisely what the memoranda was about, but,
    56        nevertheless, it concerned matters concerning company books
    57        and an investigation into a company by the Customs and
    58        Excise.
    59
    60        However, if it makes it clear that where there is a

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