Day 262 - 13 Jun 96 - Page 63


     
     1        document that comes into existence for another primary
     2        purpose or, as the authorities that have been referred to
     3        say, dominant purpose, then the mere fact that litigation
     4        may result from it does not assist the Plaintiffs in their
     5        claim to privilege.
     6
     7        There is a passage further on in the report which is of
     8        significance.  It is to be found on page 432, beginning at
     9        paragraph G:
    10
    11             "One day it may be necessary for this House to
    12             consider the point but in my judgment it does
    13             not arrive for decision in this case.  In the
    14             Ogden and Seabrook type of case the reports in
    15             question are obtained for two or more quite
    16             separate purposes.  Here the two purposes for
    17             which the documents in question were obtained or
    18             came into existence were parts of a single wider
    19             purpose - namely, the ascertainment of the
    20             wholesale value in the manner prescribed by the
    21             Act.  The first, and the sole immediate purpose
    22             was to help the commissioners to fix what in
    23             their opinion was the true value; the second
    24             purpose was to help the solicitor, if the
    25             commissioners' opinion was challenged, to
    26             prepare their case for the arbitration."
    27
    28        I break off at that point.  That is for the purposes of
    29        some form of litigation.
    30
    31             "It was not - and hardly could have been -
    32             suggested that the mere fact that the
    33             commissioners would know in every case that
    34             their opinion might be challenged would itself
    35             enable them to claim such documents as are in
    36             question here would be the subject of legal
    37             professional privilege whenever in fact their
    38             opinion was challenged.  What is said to make
    39             them privileged in this case was the fact that
    40             the commissioners happened to expect that there
    41             would be an arbitration and called in the
    42             solicitor to 'hold their hands' in the earlier
    43             stages.  But, even so, in this case just as much
    44             as in cases in which no arbitration was in fact
    45             anticipated the commissioners had to form their
    46             own opinion as to value on the evidence
    47             available to them, including these documents,
    48             before any arbitration could take place.  This
    49             feature of the case appears to me to distinguish
    50             it from the Ogden or Seabrook type of case and 
    51             it make analogous to the case of Jones v. Great 
    52             Central Railway Company." 
    53
    54        There, I remember, it goes on to recite -----
    55
    56   MR. JUSTICE BELL:  Read on to the end of the paragraph anyway.
    57
    58   MR. HALL:  "There a member of a trade union who thought
    59             that he had been unjustly dismissed by his
    60             employers furnished the union authorities (as

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