Day 262 - 13 Jun 96 - Page 57


     
     1   MR. RAMPTON:  It would.
     2
     3   MR. JUSTICE BELL:  An area I am familiar with, if you
     4        interviewed three doctors and four midwives who have been
     5        in a labour ward at a relevant time, and decided to call
     6        two of the doctors and two of the midwives, you would have
     7        to disclose the statements you have taken from everyone
     8        else.
     9
    10   MR. RAMPTON:  That is right.  You would.  We do not believe that
    11        is actually the law, although that is why I raised it in
    12        the way that I did, because I think it is quite difficult
    13        if you divorce the principle of fairness in relation to a
    14        particular transaction from what we might call -- what we
    15        would like to call -- the true position in law, which is
    16        that you do not, in fact, by calling one witness, waive
    17        privilege in relation to all other material relating to
    18        potential witnesses that you never did call.
    19
    20   MR. JUSTICE BELL:  But there is no clear authority on that?
    21
    22   MR. RAMPTON:  Only this -- no.  The Court of Appeal has not, so
    23        far as I know, actually pronounced on this.  But there are
    24        some very helpful indications in the judgment of
    25        Hobhouse J. in the General Accident case, which is reported
    26        at [1984] 1 W.L.R., 100.
    27
    28   MR. JUSTICE BELL:  I am very conscious of the time and
    29        Mr. Hall's position.  I wonder if the question is to leave
    30        it there -- because I do not know what he would say about
    31        that, anyway.
    32
    33   MR. RAMPTON:  Well, I am quite content to do that.  Can I just
    34        ask your Lordship to note the passages to which I would
    35        have placed really quite heavy emphasis on, because, in our
    36        respectful submission, they do represent the reality of
    37        litigation under the law.  Starting, firstly, at the bottom
    38        of page 107, at letter H, where the learned judge recites
    39        the submission of Mr. Saville Q.C. (as he then was), and,
    40        in particular, on page 108, from the top down to letter G.
    41
    42   MR. MORRIS:  Which case are we on?
    43
    44   MR. RAMPTON:  General Accident Corporation v. Tanter,
    45        [1984] 1 W.L.R..  My Lord, I am not going to read it,
    46        because your Lordship has invited me not to.  At the top of
    47        108, going down to letter G, just under letter G on that
    48        page, where, in effect, dismissing Mr. Saville's
    49        application, Hobhouse J. gives what we conceive to be some
    50        very realistic examples of just what your Lordship said a 
    51        moment ago, the far-reaching consequences to which, if such 
    52        a submission can be right, would lead. 
    53
    54        Then, my Lord, a short passage reflecting another case
    55        tried by Mustill J. (as he then was), starting at the
    56        bottom of page 110 -- that was the Nea Karteria case -- and
    57        going to the top of 111.  Again, your Lordship may feel
    58        that that little passage, which reflects the decision of
    59        Mustill J. in that case, is helpful, because it is talking
    60        about a document which was disclosable because it was

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