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

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