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
