Day 262 - 13 Jun 96 - Page 65


     
     1        with a view to getting advice as to whether there were
     2        individuals who could be held responsible, as well as
     3        advice on the good sense or otherwise of taking litigation.
     4
     5   MR. HALL:  Yes.
     6
     7   MR. JUSTICE BELL:  As long as it was for the purpose of getting
     8        advice, would that not be enough for privilege?
     9
    10   MR. HALL:  The difficulty -----
    11
    12   MR. JUSTICE BELL:  Legal advice of that kind.
    13
    14   MR. HALL:  The difficulty would be determining that in this
    15        particular case.
    16
    17   MR. JUSTICE BELL:  I appreciate there might be -- then one has
    18        to look at the material which is available.  But that would
    19        be sufficient if it was: "We want you to investigate and
    20        send reports to Barlow Lyde & Gilbert" -- all this being
    21        unsaid to the agents, of course, but carrying on -- "so
    22        that we can be advised by them what (if any) action we can
    23        take against whom, if anyone."
    24
    25   MR. HALL:  Yes.
    26
    27   MR. JUSTICE BELL:  Would that be sufficient for privilege?
    28
    29   MR. HALL:  I of course accept that there are always going to be
    30        circumstances that could bring a plaintiff within the
    31        appropriate category to claim privilege.  However, the
    32        difficulty in this case is that your Lordship has not heard
    33        clear evidence to this effect: "We instructed our
    34        solicitors to obtain evidence or to begin litigation, or to
    35        find out who it is we can sue."  The evidence in this case,
    36        as I understand it, is that: "We instructed solicitors who
    37        instructed inquiry agents to discover the identities of
    38        people who might be thought to be responsible."
    39
    40        I believe the evidence of Mr. Preston is that in July 1989
    41        he was of the view that some kind of action should be
    42        taken; and the evidence from Mr. Nicholson is that he was
    43        approached by Mr. Preston in July 1989, and that in
    44        September/October 1989 he instructed the inquiry agents
    45        through the solicitors, and that litigation was one
    46        possible option.
    47
    48        It is, perhaps, in the nature of a large organisation to
    49        retain the services of a firm of solicitors over a long
    50        period of time to deal with a number of issues.  The 
    51        difficulty that the Plaintiffs have in this case is that 
    52        despite the no doubt continuing relationship with those 
    53        solicitors, they have to -- as it is their privilege that
    54        they seek to assert -- they have to satisfy you of when it
    55        was that legal advice about this was sought or, indeed,
    56        when it was that actions were taken for the dominant
    57        purpose of litigation, as opposed to actions being taken in
    58        relation to their solicitors, as it were, in the normal
    59        course of their business affairs, although connected with
    60        this issue.

Prev Next Index