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
