Day 262 - 13 Jun 96 - Page 65
1 with a view to getting advice as to whether there were
2 individuals who could be held responsible, as well as
3 advice on the good sense or otherwise of taking litigation.
4
5 MR. HALL: Yes.
6
7 MR. JUSTICE BELL: As long as it was for the purpose of getting
8 advice, would that not be enough for privilege?
9
10 MR. HALL: The difficulty -----
11
12 MR. JUSTICE BELL: Legal advice of that kind.
13
14 MR. HALL: The difficulty would be determining that in this
15 particular case.
16
17 MR. JUSTICE BELL: I appreciate there might be -- then one has
18 to look at the material which is available. But that would
19 be sufficient if it was: "We want you to investigate and
20 send reports to Barlow Lyde & Gilbert" -- all this being
21 unsaid to the agents, of course, but carrying on -- "so
22 that we can be advised by them what (if any) action we can
23 take against whom, if anyone."
24
25 MR. HALL: Yes.
26
27 MR. JUSTICE BELL: Would that be sufficient for privilege?
28
29 MR. HALL: I of course accept that there are always going to be
30 circumstances that could bring a plaintiff within the
31 appropriate category to claim privilege. However, the
32 difficulty in this case is that your Lordship has not heard
33 clear evidence to this effect: "We instructed our
34 solicitors to obtain evidence or to begin litigation, or to
35 find out who it is we can sue." The evidence in this case,
36 as I understand it, is that: "We instructed solicitors who
37 instructed inquiry agents to discover the identities of
38 people who might be thought to be responsible."
39
40 I believe the evidence of Mr. Preston is that in July 1989
41 he was of the view that some kind of action should be
42 taken; and the evidence from Mr. Nicholson is that he was
43 approached by Mr. Preston in July 1989, and that in
44 September/October 1989 he instructed the inquiry agents
45 through the solicitors, and that litigation was one
46 possible option.
47
48 It is, perhaps, in the nature of a large organisation to
49 retain the services of a firm of solicitors over a long
50 period of time to deal with a number of issues. The
51 difficulty that the Plaintiffs have in this case is that
52 despite the no doubt continuing relationship with those
53 solicitors, they have to -- as it is their privilege that
54 they seek to assert -- they have to satisfy you of when it
55 was that legal advice about this was sought or, indeed,
56 when it was that actions were taken for the dominant
57 purpose of litigation, as opposed to actions being taken in
58 relation to their solicitors, as it were, in the normal
59 course of their business affairs, although connected with
60 this issue.
