Day 255 - 23 May 96 - Page 58


     
     1        case.  You also, along the way, may seek their advice on
     2        where they take you so far as the litigation is concerned,
     3        but that is not the dominant purpose of providing the
     4        information.
     5
     6   MR. MORRIS:  If the aim, as has been said, of the instructions
     7        of the spies or infiltrators was that they should identify
     8        who was responsible for X, Y, Z, which is, in other words,
     9        to obtain evidence, then if that evidence which would be
    10        relevant in this case and can be put to a witness is
    11        available, then it should be disclosable.  Obviously, we
    12        are not having the argument now, but that should be -----
    13
    14   MR. JUSTICE BELL:  No.  I will hear the argument in due course.
    15        What I anticipate Mr. Rampton will say is the purpose of
    16        obtaining information about investigations and observations
    17        carried out by, let us say -- I know you dispute it -- but
    18        let us say seven inquiry agents was in order to obtain
    19        advice in relation to proceedings in contemplation, and you
    20        do not need to be a genius to guess the advice is whether
    21        there is sufficient evidence of publication to sue.  That,
    22        therefore, Mr. Rampton says, is privileged.  It may become
    23        evidence in due course, but at the moment it is put forward
    24        as evidence.  The privilege is waived.  So you are entitled
    25        to ask questions about it.
    26
    27   MR. MORRIS:  What about after the -----
    28
    29   MR. JUSTICE BELL:  But if the three inquiry agents, other than
    30        those in respect of whom witness statements have been
    31        served, is kept under wraps, it is privileged.  There has
    32        not been a waiver of the privilege and you are not entitled
    33        to have any documents about it.  You are not entitled to
    34        ask interrogatories about it.  You are not entitled to look
    35        at any photographs, and you are not entitled to ask any
    36        other witness in the witness box about it.  It is covered
    37        by privilege.  I am not saying that is right.  I am saying
    38        that is what I understand the argument will be.
    39
    40   MR. MORRIS:  What if they went beyond September 1990 when
    41        proceedings were already issued then?
    42
    43   MR. JUSTICE BELL:  Yes, that is even stronger than proceedings
    44        being in contemplation.  Again, you are getting advice at
    45        that stage.  I can imagine it might be argued, "Would it
    46        help to call this witness?  Would it strengthen the case?
    47        Just generally, what are the ramifications of it?"  In
    48        fact, you may be seeking advice on whether to use it in
    49        evidence; but it is privileged until it is waived.  That is
    50        the argument. 
    51 
    52   MR. MORRIS:  Yes.  I think there is a qualitative difference 
    53        when the actual intent of the Defendants and the Plaintiffs
    54        is at issue and the amount of information the Plaintiffs
    55        knew about what was happening or what information they were
    56        being passed on and the extent of infiltration.  All I am
    57        saying is -- I know we are not arguing it now -----
    58
    59   MR. JUSTICE BELL:  For all I know, I have not even summarised
    60        Mr. Rampton's argument accurately.  The only reason I have

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