Day 263 - 14 Jun 96 - Page 31
1 have an opportunity of satisfying themselves
2 that what the party has chosen to release from
3 privilege represents the whole of the material
4 relevant to the issue in question. To allow an
5 individual item to be plucked out of context
6 would be to risk injustice through its real
7 weight or meaning being misunderstood. In my
8 view, the same principle can be seen at work in
9 Doland v. Blackburn, in a rather different
10 context.
11
12 "In these circumstances, I consider that
13 the court must ask itself whether the Plaintiffs
14 have made use of the boatswain's statement
15 before the face of the court. Plainly they did
16 not do so when they put to the seaman in 1975,
17 for this was on a privileged occasion. Nor in
18 my view did they make the boatswain's statement
19 part of the material in the action when they
20 cross-examined the seaman on paras 14 and 15 of
21 his statement dated 1 November 1978. What the
22 Plaintiffs were taxing him was not the previous
23 statement of the boatswain, but his own previous
24 statement; and the fact that this statement took
25 the shape of an assent to something previously
26 said by the boatswain does not mean that the
27 boatswain's statement is thereby made part of
28 the material which the Plaintiffs were asking
29 the court to take into account. It is the
30 assent which matters, not the source of the
31 material to which assent was given."
32
33 Then he held that the plaintiffs had not waived the
34 privilege in the boatswain's statement.
35
36 Can I draw a parallel with this case, which may mean that
37 the difficulty which your Lordship sees and which I saw
38 yesterday, and still do see to some extent, is more
39 apparent than real. If this judgment is right -- although
40 it is a high authority, given the person who delivered it
41 -- it is only, so far as your Lordship is concerned,
42 persuasive and not binding. If, in this case, Mrs. Tiller
43 comes to give evidence and if, when I cross-examine her,
44 I use the notes she made or the report based upon her
45 notes, then, without any question, I shall have waived the
46 privilege in that report or those notes. In so far as they
47 are relevant, they are disclosable at that point as a
48 matter of fact, although, to avoid inconvenience, I would
49 do it before she gave evidence, once I was sure she was
50 going to give evidence. Suppose, my Lord, that in the body
51 of those notes or that report she had made reference to
52 something said on the same occasion by Michelle Hooker.
53 Following Mustill J., though I would be bound to accept
54 that I had waived the privilege in Mrs. Tiller's notes,
55 I would note have waived the privilege in any notes that
56 Michelle Hooker might have taken of the same occasion,
57 because it would not be material before the court and
58 I would not have deployed it in evidence.
59
60 My Lord, that may be the correct test. In effect,
