Day 262 - 13 Jun 96 - Page 70


     
     1        your Lordship had the report actually at that moment.  It
     2        was a little time ago.
     3
     4   MR. JUSTICE BELL:  I do not think I have ever had a copy of it.
     5
     6   MR. RAMPTON:  We have a spare.  Your Lordship can write on it.
     7
     8   MR. JUSTICE BELL:  Thank you.  (Handed).  Yes?
     9
    10   MR. HALL:  A persuasive rather than a binding authority, though
    11        I would accept an authority of significant weight.  Indeed,
    12        it is heavily relied upon by the Plaintiffs.  It is partly
    13        for that reason that I would start this submission with
    14        this authority.
    15
    16        It was held in that case:
    17
    18             "... that it was only where privileged material
    19             was adduced in evidence by the party to whom the
    20             privilege attached, that waiver of privilege
    21             extended to other matter coming into existence
    22             after, but relating to, the transaction in
    23             respect of which the evidence was adduced".
    24
    25        I stop there because the word most relevant for the
    26        purposes of this submission is the word "transaction", and
    27        it is a word that has been used in submissions before you
    28        and repeated, to some extent, in one or two other
    29        authorities.  One of the issues, in my respectful
    30        submission, that your Lordship has to decide is what is a
    31        transaction for the purposes of privilege and how does that
    32        apply in this case?
    33
    34        On first view of the word, in the context in which it is
    35        being used in General Accident v. Tanter, it might be
    36        thought merely to be one limited.  But, in my submission,
    37        it is not so limited.  If it was so limited, then in this
    38        case what is the transaction or transactions in question?
    39        Are the transactions the making of each set of notes for
    40        each meeting by each agent, or the drafting of each report
    41        that was submitted, or could it be that the relevant
    42        transaction in this case is the instructing of the inquiry
    43        agents to conduct their inquiries?  So, in effect, it is
    44        the instructing of the firm of Bishops to engage agents to
    45        gather information.
    46
    47   MR. JUSTICE BELL:  Yes, but is that what transaction means at
    48        all?  I mean, transaction here, the substance of the
    49        evidence adduced was a conversation, then the relevant
    50        transaction for the purpose of determining the extent of 
    51        the waiver was the content of the conversation. 
    52 
    53   MR. HALL:  Yes, I agree.  I accept that.
    54
    55   MR. JUSTICE BELL:  Then is not the transaction here the content
    56        of a particular meeting of London Greenpeace or a
    57        particular event?  Then I wondered if you were going to
    58        argue, well, no, the actual transaction is the alleged
    59        participation in publication of the leaflet or involvement
    60        in the activities of London Greenpeace alleged to be

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