Day 280 - 17 Jul 96 - Page 21


     
     1        November, 1989 going out, and if one, I think, looks at his
     2        notes you begin to see that he had some involvement in
     3        that.
     4
     5             So, it is quite clear that the Defendants ought to
     6        have done it earlier, and any proceedings against the
     7        private investigators the proper time for that is later
     8        rather than earlier.  It is after the judgment of your
     9        Lordship when everyone knows where they are and can decide,
    10        probably with a great saving of costs, can decide, whether
    11        or not those contribution proceedings are worth pursuing.
    12        And it is said, Oh, well, the contribution proceedings
    13        would be more of a strain for the Defendants than third
    14        party proceedings.  The fact is, if third party proceedings
    15        are going to be fair they have got to be all on the same
    16        lines as any contribution proceedings would be, so I cannot
    17        really see there is any greater strain on the Defendants.
    18
    19
    20             I will just check, my Lord, whether there is anything
    21        finally.
    22
    23   MR. JUSTICE BELL:  Yes.  I would like your help on the point I
    24        put to Mr. Starmer as to whether there realistically is any
    25        claim for contribution anyway in the circumstances of this
    26        case, because these are third party proceedings based on,
    27        or would be based on, a suggestion that the inquiry agents
    28        are jointly liable to your clients.
    29
    30   MR. ATKINSON:   Yes.
    31
    32   MR. JUSTICE BELL:  Can they be liable to your clients on any
    33        construction of the evidence when you have, through Mr.
    34        Nicholson, the Plaintiff's solicitors, put the inquiry
    35        agents in to infiltrate with all that might be reasonably
    36        expected to follow from that?
    37
    38   MR. ATKINSON:   Can I make two points on that?
    39
    40   MR. JUSTICE BELL:   Yes.
    41
    42   MR. ATKINSON:   The first is I do not want to say any higher
    43        than it is likely arguable because I do not want to
    44        prejudice anything Mr. Rampton says in his closing speeches
    45        on this because it has not been thought about carefully
    46        enough, but I would say it is highly arguable that insofar
    47        as 'A' does an act on the instructions of 'B' which is
    48        damaging to 'B', it seems to me that it might be a little
    49        odd that 'B' could then say, "'A' I am going sue you", and
    50        I think, in fact, I have read in the White Book that 'A'
    51        might well be able to come back and say, "Well, even if
    52        this is the case I must have some form of indemnity", or
    53        whatever.  But forgetting that, it would be very odd
    54        indeed, but I only want to put that as highly arguable.  I
    55        do not want to make any concession on that.
    56
    57             The second point is just to say that just because a
    58        private investigator on a particular occasion has handed
    59        out one of the leaflets or whatever, or, if one puts it
    60        higher, has in some way participated, it might be the case

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