Day 263 - 14 Jun 96 - Page 33


     
     1             list of questions was in the possession of [T]
     2             whilst the interview was being conducted does
     3             not of itself mean that privilege has been
     4             waived by his giving evidence on the meeting.
     5             Stated in bald terms, that proposition must
     6             I think be correct.  Mr. Evans goes on to say
     7             that there is no real difference between what
     8             happened here and a case in which [T] had
     9             memorised the questions and put them to the
    10             witness without the aid of the document.  There
    11             I differ from him.  It seems to me that the
    12             written questions were, so to speak, part of the
    13             meeting.  They were in a sense an agenda for the
    14             meeting.  They formed the basis for one-half of
    15             the exchange between lawyer and the seaman.
    16             Evidence to that evidence having been given by
    17             the lawyer, it seems to me that privilege must
    18             have been waived for those questions."
    19
    20        My Lord, I have to say -- and this is somewhat impertinent
    21        -- I respectfully see the logic of that.
    22
    23             "And I think the interests of justice, which I
    24             believe to underlie the authorities on this part
    25             of the case, demand that the opposition and the
    26             court should have an opportunity to satisfy
    27             itself as to the accuracy of the evidence given
    28             by the lawyer as to the way in which he
    29             conducted the interview."
    30
    31        The judge then turned to the material which could be called
    32        instructions to T.
    33
    34             "I find this to be in a different category from
    35             the list of questions.  Those instructions did
    36             not play a part in the meeting.  They did not
    37             form part of the body of events upon which
    38             I have to reach conclusions of fact.  They were
    39             merely part of the prior history of those
    40             events."
    41
    42        My Lord, that last part is important, for the reason that
    43        it fuels the submission, which I derive from this case and
    44        also from Hobhouse J.'s judgment in the General Accident
    45        case, that if one uses the word "transaction" it is to be
    46        construed narrowly.  It does not mean all material relevant
    47        to that transaction even, or to the subject matter of the
    48        transaction.  What it actually means is material which, as
    49        it were, may be thought to describe or convey an impression
    50        of a particular event. 
    51 
    52   MR. JUSTICE BELL:  But does that lead you to argue that if, for 
    53        instance, you called a witness to give evidence about
    54        meeting A and disclose his notes of meeting A, that has not
    55        waived notes which you also have made by someone else at
    56        meeting A?
    57
    58   MR. RAMPTON:  My Lord, that is certainly an argument that
    59        I formally submit can be derived from this authority, both
    60        by a reference to the seaman/boatswain question and by

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