Day 262 - 13 Jun 96 - Page 77


     
     1             separate and distinct memoranda; that,
     2             accordingly, privilege could not be waived as to
     3             part and asserted as to the remainder...; that
     4             the deliberate introduction by the plaintiffs'
     5             counsel of part of the memorandum into the trial
     6             record effectively waived privilege with regard
     7             to the whole memorandum....; and that there was
     8             no discretion by which the court could restore
     9             and enable the plaintiffs to assert privilege in
    10             respect of the whole or part of the memorandum".
    11
    12   MR. JUSTICE BELL:  Yes.  I think the situation is rather
    13        different here.  As the Court of Appeal make clear in G.E.
    14        Capital, in G.E. Capital it was not a question of
    15        privilege.  It was a question of relevance, and there is no
    16        claim to be entitled to blank out the parts in the notes
    17        which have been disclosed on the grounds of privilege.  It
    18        is purely on the basis of relevance.
    19
    20   MR. HALL:  Yes.
    21
    22   MR. JUSTICE BELL:  Of course, if they are not relevant, we do
    23        not even get to the question of whether you might be
    24        entitled not to disclose them because of privilege.
    25
    26   MR. HALL:  G.E. Capital was an appeal arising out of an
    27        interlocutory application and on appeal -- I am reading
    28        from the report which is to be found -----
    29
    30   MR. JUSTICE BELL:  Give me the report because it is in the
    31        report.  I have just used the transcript.  Give me the
    32        reference.
    33
    34   MR. HALL:  [1995] Volume 1 of the Weekly Law Reports at page
    35        175, paragraph E.  This is the G.E. Capital case.  It was
    36        said:
    37
    38             "On its facts the Great Atlantic case was not
    39             about discovery at all.  It concerned a
    40             privileged document of which counsel read out
    41             part in the course of his opening."
    42
    43   MR. JUSTICE BELL:  Yes.
    44
    45   MR. HALL:  It goes on at paragraph G, having set out the test to
    46        be applied:
    47
    48             "If this test is confined to the context in
    49             which it was applied, namely, the case of a
    50             party who puts in evidence part of a privileged 
    51             document, I would not in any way differ." 
    52 
    53        So, in my respectful submission, we are dealing, in fact,
    54        with a similar situation as was dealt with in Great
    55        Atlantic Insurance.
    56
    57   MR. RAMPTON:  My Lord, I would be obliged if my learned
    58        friend-----
    59
    60   MR. JUSTICE BELL:  I do not think you need because I know the

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