Day 262 - 13 Jun 96 - Page 79


     
     1
     2        On page 537 of the report the court deals with the third
     3        question, which was "whether privilege in respect of the
     4        memorandum dated May 2, 1980, was in fact waived by or on
     5        behalf of the plaintiffs.  Neither the plaintiffs nor any
     6        of the plaintiffs' legal advisers intended to waive any
     7        privilege."
     8
     9        Under that heading, and going onto the next page, page 538,
    10        towards the end of the court dealing with this particular
    11        question, the following is reported:
    12
    13             "I agree and would only add that it would not
    14             be satisfactory for the court to decide that
    15             part of a privileged document can be introduced
    16             without waiving privilege with regard to the
    17             other part in the absence of informed argument
    18             to the contrary, and there can be no informed
    19             argument without the disclosure which would make
    20             argument unnecessary".
    21
    22        I skip four or five lines:
    23
    24             "In my judgment, however, the rule that
    25             privilege relating to a document which deals
    26             with one subject matter cannot be waived as to
    27             part and asserted as to the remainder is based
    28             on the possibility that any use of part of a
    29             document may be unfair or misleading, that the
    30             party who possesses the document is clearly not
    31             the person who can decide whether a partial
    32             disclosure is misleading or not, nor can the
    33             judge decide without hearing argument, nor can
    34             he hear argument unless the document is
    35             disclosed as a whole to the other side.  Once
    36             disclosure has taken place by introducing part
    37             of the document into evidence or using it in
    38             court it cannot be erased."
    39
    40        Now, I appreciate that that was said in the context of a
    41        claim of privilege in relation to parts of a document, but,
    42        in my submission, in dealing with the particular documents
    43        in this case and the fact that privilege is claimed for
    44        similar documents relating to other people, that it would
    45        be appropriate for your Lordship to require the Plaintiffs
    46        to disclose the parts that have been blanked out so that
    47        you can hear full argument about the relevance.  To hold
    48        otherwise would mean that the Defendants are in this
    49        position:  They do not hold those documents and they have
    50        no opportunity of knowing what those blanked out passages 
    51        contain. 
    52 
    53        It would be impossible, in those circumstances, to persuade
    54        you of the relevance of passages of a document that they
    55        cannot read without, themselves, being in a position to
    56        consider the contents.  If, of course, they are irrelevant,
    57        then there are appropriate steps that can be taken to
    58        control cross-examination of those passages.  It is one
    59        thing to order disclosure.  It is another thing, of course,
    60        to rule on the relevancy of the matter that is being

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