Day 262 - 13 Jun 96 - Page 44
1 The difficulty may arise -- and I do not think it is a
2 difficulty at all -- but argument may arise where the
3 client asks a third party to do something as a consequence
4 of which a document is created. That does not have the
5 same broad protection that legal advice privilege has.
6
7 My broad submission, or my summary submission, so far as
8 that is concerned, is this, that the dominant purpose for
9 the creation of a document must be actual or contemplated
10 litigation. That is probably uncontroversial. What that
11 means is, though there may be subsidiary purposes, it is
12 the litigation which is really the spark; whether the
13 litigation is contemplated or actual, it is the spark which
14 causes the document to come into existence. Though it may
15 well have other uses and other purposes, it is the
16 litigation, the thought of it, which ignites the action
17 which produces the document.
18
19 The next question is: what does it mean, contemplated
20 litigation? Once litigation has begun, then there really
21 is not very much scope for argument. But what does it
22 mean, contemplated litigation?
23
24 In Waugh, my Lord -- and I am not much asked your Lordship
25 to look at Waugh, because it is really the leading
26 authority on this question -- Style and Hollander write, on
27 page 178: "Following Waugh, the correct test is...."
28
29 MR. JUSTICE BELL: I am just finding it.
30
31 MR. RAMPTON: Yes. It is a very short passage.
32
33 MS. STEEL: We do not seem to have it. We have not got a copy
34 of page 178.
35
36 MR. RAMPTON: I will read it out. It is very, very short.
37 I will read it slowly. I will read the whole -- my Lord,
38 there are two paragraphs under (b) on page 178, and the
39 subheading is: "When this privilege arises" -- that is
40 litigation privilege -- and the authors write:
41
42 "It will often be difficult to identify
43 precisely the moment at which this category of
44 privilege comes into existence. Bray on
45 Discovery (1st ed. 1885) at 408 formulates the
46 following test: 'There must be some definite
47 prospect of litigation and not a mere vague
48 anticipation of it.' This passage was quoted
49 with approval by Lord Denning M.R. in
50 Alfred Compton Amusement Machines Ltd. v.
51 Customs and Excise Commissioners (No. 2) [1972]
52 2 Q.B. 102 at 130."
53
54 Then Style and Hollander go on, in the next paragraph:
55
56 "Following Waugh" -- which is, of course,
57 my Lord, a case in the House of Lords
58 -- "however, the correct test is whether
59 litigation is 'in reasonable prospect', the
60 words of Barwick C.J. This was the test applied
