Day 263 - 14 Jun 96 - Page 06
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2 MS. STEEL: OK.
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4 MR. MORRIS: On the subject of whether the litigation was
5 reasonably in prospect, obviously, we have a kind of
6 interesting situation where the Plaintiffs are arguing one
7 thing in a legal argument and another thing in terms of
8 their case. Mr. Nicholson was asked, on the last day he
9 attended -- I cannot remember the date now; it was when
10 Mr. Rampton referred to on page 57, do you remember, when
11 his -----
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13 MR. JUSTICE BELL: Yes, I read that through.
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15 MR. MORRIS: Obviously, on page 55 it was slightly different, at
16 line 40 -- and I will not read the whole context.
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18 MR. JUSTICE BELL: I have it very much in mind. It is
19 considerable irony that both you and Ms. Steel are pressing
20 him to accept that it was litigation only from the start
21 and -----
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23 MR. MORRIS: Yes.
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25 MR. JUSTICE BELL: Both sides have changed shirts, to some
26 extent.
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28 MR. MORRIS: Yes.
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30 MR. JUSTICE BELL: But there we are. I just have to reach my
31 impression in relation to it.
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33 MR. MORRIS: Yes.
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35 MR. JUSTICE BELL: Although you will be at liberty to argue in
36 the future, at the end of the day, what the situation is,
37 I have to form it on the evidence and information available
38 to me at the moment.
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40 MR. MORRIS: Yes.
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42 MR. JUSTICE BELL: You just shortly put your points, so I can
43 make a note of them and think about them.
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45 MR. MORRIS: Yes. If it was thought that the litigation was
46 dominant purpose, then of course that would put a colour on
47 the evidence in other areas; in this area, but not related
48 to the present legal dispute -- although he did say on
49 page 55, I said to him: "You say it was a distinct
50 possibility you were going to", and then he
51 interrupted: "No, there was possibility, there was a always
52 a possibility we would end in up litigation." So he
53 started off with it was just a possibility and option, and
54 by page 57 he had, basically, effectively said it was a
55 dominant purpose. Anyway, that is all I have to say on
56 that, really.
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58 In any event, of course, we argue that privilege has been
59 waived. The course of conduct leading to the
60 documentation, we would say, is a completely unified single
