Day 255 - 23 May 96 - Page 58
1 case. You also, along the way, may seek their advice on
2 where they take you so far as the litigation is concerned,
3 but that is not the dominant purpose of providing the
4 information.
5
6 MR. MORRIS: If the aim, as has been said, of the instructions
7 of the spies or infiltrators was that they should identify
8 who was responsible for X, Y, Z, which is, in other words,
9 to obtain evidence, then if that evidence which would be
10 relevant in this case and can be put to a witness is
11 available, then it should be disclosable. Obviously, we
12 are not having the argument now, but that should be -----
13
14 MR. JUSTICE BELL: No. I will hear the argument in due course.
15 What I anticipate Mr. Rampton will say is the purpose of
16 obtaining information about investigations and observations
17 carried out by, let us say -- I know you dispute it -- but
18 let us say seven inquiry agents was in order to obtain
19 advice in relation to proceedings in contemplation, and you
20 do not need to be a genius to guess the advice is whether
21 there is sufficient evidence of publication to sue. That,
22 therefore, Mr. Rampton says, is privileged. It may become
23 evidence in due course, but at the moment it is put forward
24 as evidence. The privilege is waived. So you are entitled
25 to ask questions about it.
26
27 MR. MORRIS: What about after the -----
28
29 MR. JUSTICE BELL: But if the three inquiry agents, other than
30 those in respect of whom witness statements have been
31 served, is kept under wraps, it is privileged. There has
32 not been a waiver of the privilege and you are not entitled
33 to have any documents about it. You are not entitled to
34 ask interrogatories about it. You are not entitled to look
35 at any photographs, and you are not entitled to ask any
36 other witness in the witness box about it. It is covered
37 by privilege. I am not saying that is right. I am saying
38 that is what I understand the argument will be.
39
40 MR. MORRIS: What if they went beyond September 1990 when
41 proceedings were already issued then?
42
43 MR. JUSTICE BELL: Yes, that is even stronger than proceedings
44 being in contemplation. Again, you are getting advice at
45 that stage. I can imagine it might be argued, "Would it
46 help to call this witness? Would it strengthen the case?
47 Just generally, what are the ramifications of it?" In
48 fact, you may be seeking advice on whether to use it in
49 evidence; but it is privileged until it is waived. That is
50 the argument.
51
52 MR. MORRIS: Yes. I think there is a qualitative difference
53 when the actual intent of the Defendants and the Plaintiffs
54 is at issue and the amount of information the Plaintiffs
55 knew about what was happening or what information they were
56 being passed on and the extent of infiltration. All I am
57 saying is -- I know we are not arguing it now -----
58
59 MR. JUSTICE BELL: For all I know, I have not even summarised
60 Mr. Rampton's argument accurately. The only reason I have
