Day 262 - 13 Jun 96 - Page 54
1 discretion.
2
3 MR. RAMPTON: None at all.
4
5 MR. JUSTICE BELL: The client is entitled to claim privilege,
6 and no court can make comment on the fact that privilege
7 has been claimed in order to draw any inference from the
8 claiming of privilege.
9
10 MR. RAMPTON: None at all.
11
12 MR. JUSTICE BELL: There is clear authority as to that.
13
14 MR. RAMPTON: There is, my Lord. I had not thought that that
15 was in the least bit controversial, so I have not brought
16 any authority on that. But that I doubt will be argued.
17 It is perfectly clear as a matter of law. If it were
18 otherwise, privilege might not be worth very much.
19
20 My Lord, I start with, as I say, a rather trite
21 observation, that the question of waiver of privilege, or
22 waiver of privilege can never extend to irrelevant material
23 for the reason that irrelevant material is never
24 disclosable in the first place, anyway.
25
26 The second question is, if you waive privilege in a
27 document or by calling a witness to give evidence or
28 information to the court which would otherwise have been
29 privileged, how far does that waiver extend? The answer
30 is, as far as we can see on the authorities, it extends to
31 documents connected to or associated with the particular
32 transaction which is dealt with or described by the
33 evidence.
34
35 The third question then is: in any given case, what is the
36 transaction? In the context of this case we believe that
37 the answers to those two last questions are really quite
38 easy, and they can be put into summary form. If an inquiry
39 agent gives evidence about a particular London Greenpeace
40 meeting on the basis, largely speaking, though to some
41 extent from his memory, but, largely speaking, on the basis
42 of notes that he took at the time, then when he gives
43 evidence, the client (the Plaintiff in this case) has
44 waived privilege not only in relation to the evidence
45 itself which was, until it was given, itself the subject of
46 privilege, but also in the associated notes, so far as they
47 were relevant.
48
49 That does not mean, however, in our respectful submission,
50 that by that route one makes any broader waiver, whether in
51 relation to other occasions about which that witness does
52 not give evidence, or in relation to evidence which might
53 have been given by another witness to that occasion who has
54 not, in fact, been called to give evidence.
55
56 The whole reason for that, as one sees when one looks --
57 I am only going to ask your Lordship to look at two
58 authorities -- but the whole reason for that is that a
59 party has an inalienable right to choose what evidence to
60 adduce at trial. Until the evidence is adduced -- and it
