Day 262 - 13 Jun 96 - Page 52
1 elaborate.
2
3 MR. JUSTICE BELL: A fortiori, it is because litigation is
4 contemplated as a possible route.
5
6 MR. RAMPTON: Yes. But to use Bingham L.J.'s expression, there
7 can be no question but that even way back in September 1989
8 litigation was in the air. That it should come to earth
9 would be a regrettable outcome. It did. But, certainly,
10 it was in the air. But your Lordship is absolutely right;
11 and if one looks at it like that, all communications by the
12 client or his agent with the solicitor for the purpose of
13 getting legal advice -- never mind litigation -- fall
14 within the broad umbrella anyway. That is absolutely
15 right.
16
17 It is, however -- I interrupted myself, it matters not --
18 it is right to tell your Lordship, as I have embarked on
19 that, though all reports, without exception, up to the time
20 when the writ was issued, were sent to Barlow Lyde &
21 Gilbert, there was a small number, I think, during the
22 latter part of 1989, when there was but one inquiry agent
23 still in the group -----
24
25 MR. MORRIS: 1990.
26
27 MR. RAMPTON: I mean 1990 -- that being the lady Michelle
28 Hooker, so far as I know -- a small number of those reports
29 were sent to Mr. Nicholson before they were sent to Barlow
30 Lyde & Gilbert. Those, if the question should arise, are
31 plainly covered by litigation privilege, but my primary
32 submission about those is that, in any event, they are
33 completely irrelevant, since they do not bear on any
34 question arising in this action -- interesting though, in
35 some senses, they might be thought to be, not least perhaps
36 because they are personal contact.
37
38 MR. JUSTICE BELL: So the question of dominance does not really
39 come in.
40
41 MR. RAMPTON: No.
42
43 MR. JUSTICE BELL: The difficulty with these matters is that one
44 does not necessarily want to make findings which are
45 binding, because one has not heard the whole of the
46 evidence, necessarily, but one can only decide an
47 application such as this upon the evidence and information
48 which is available to one at the time that one has to rule.
49
50 MR. RAMPTON: I quite agree.
51
52 MR. JUSTICE BELL: And if the picture were that the instructions
53 were given by the client and the solicitor together, with a
54 view to obtaining legal advice, one can forget whether the
55 purpose is litigation or the dominant purpose. Is that
56 right?
57
58 MR. RAMPTON: Yes, my Lord, I agree.
59
60 MR. JUSTICE BELL: If the picture is that the instructions are
