Day 083 - 06 Feb 95 - Page 24
1
2 MR. RAMPTON: Weddel was the agent, the Vesty agent. But
3 plainly not so far as Vesty or Weddel -----
4
5 MR. JUSTICE BELL: So they just would not appear on the list,
6 even if they existed and your clients knew about them?
7
8 MR. RAMPTON: Your Lordship should recall that the Vesty letter
9 which gave rise to all this Brazilian question was
10 disclosed by accident in the sense that it was part of
11 Barlow's Duke of Edinburgh file. Mr. Walker then
12 volunteered a whole lot of documents which were not in the
13 possession of McDonald's or Barlow's when he went into the
14 witness box just before, in fact, which we never knew that
15 he had. But even if we had known that he had them, it is
16 very doubtful if our analysis of the law is correct that we
17 could have asked him to produce them.
18
19 MR. JUSTICE BELL: It is a matter of some practical importance
20 because if it is correct that by and large your clients
21 destroy documents, say, two or three years after they feel
22 they have any practical bite, it might well be that there
23 are documents which are relevant which are in the
24 possession of people somewhere in the chain, but which by
25 your definition are not in the First or Second Plaintiffs'
26 power and, therefore, would not see the light of day on any
27 list.
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29 MR. RAMPTON: Nor should they. My Lord, I thought it right,
30 your Lordship asked anyway what authority there was about
31 the meaning of power, and so we have done this analysis.
32 Your Lordship may say that our analysis is wrong. But if
33 we are right about it, then it is an important
34 consideration for this reason. Thus far in this case we
35 have, I hope your Lordship would agree, been quite
36 assiduous about getting our suppliers to disclose documents
37 for the purpose of this litigation. That includes people
38 not just McKey's but other people besides.
39
40 What I am concerned about (which is why, if we are right
41 about the law, we would stand on our strict legal rights)
42 is that the Defendants appear to think that our heretofor
43 generosity and flexibility in relation to documents which
44 are not, strictly speaking, ours to disclose -- we have had
45 to ask other people to disclose -- the Defendants seem to
46 see that as an open door through which to walk with a very
47 large fishing net.
48
49 My Lord, if that should continue and if, as a matter of
50 law, we are entitled to do so, then I am afraid that we
51 will pull down the portcullis and put up the drawbridge and
52 that will be the end of it. That may not be a very helpful
53 approach so far as your Lordship is concerned, but we do
54 have to consider the position of our own clients and our
55 own clients' suppliers in all of this.
56
57 My Lord, if we are right about the legal position, then we
58 can adopt that stance without having recourse to the
59 discretionary part of Order 24 which allows your Lordship
60 to say: "Well, even if there is a strict obligation, it is
