Day 262 - 13 Jun 96 - Page 55
1 can be done by way of Civil Evidence Act statement,
2 perhaps, once it is submitted by the court certainly,
3 certainly in an affidavit which is used in proceedings and,
4 obviously, by putting somebody in the witness box -- but
5 until any of those events occurs, all the information,
6 whether in a witness statement, in notes, in drafts, in
7 solicitors' notes, all that information is the subject of
8 privilege. It is only at the time when a party makes the
9 decision to deploy that evidence in court or in the
10 proceedings that the privilege is waived.
11
12 When that happens, then if there are associated documents
13 they must be disclosed because, to use Style and
14 Hollander's words, one is not allowed to cherrypick. That
15 is what underlay the decision of the Court of Appeal in the
16 Great Atlantic Insurance case. You cannot use part of a
17 document because it suits you and then say: "Well, you
18 cannot see the rest, because I do not choose to waive on
19 that." If you have a document or, indeed, a series of
20 documents which flow from or are connected with or
21 associated with a particular piece of evidence which you
22 deploy in court, then you have taken the decision to waive
23 all that material, too.
24
25 There is, however, it appears, even then -- and this is why
26 I am a little bit cautious going even as far as I have -- a
27 problem which I am not presently, I do not believe, able to
28 resolve to my own satisfaction, I have to say. I may have
29 to leave it to your Lordship. If one takes an ordinary
30 case where an affidavit is sworn, for example -- and this
31 is one of the examples which Hobhouse J. gave in the
32 General Accident case -- if one takes, for example, an
33 affidavit which is drafted, first of all, and then sworn,
34 so far privileged; if it is then deployed in a hearing,
35 perhaps in chambers, plainly, the privilege which resided
36 in that affidavit before it was used has been waived. But
37 one asks this question, as a practising lawyer -- and
38 Hobhouse J. asked it too, and it was rhetorical question to
39 which the answer was plainly no -- does that mean, when you
40 use the affidavit, that you then have to disclose all the
41 solicitors' drafts and the notes that he made when he
42 interviewed the client.
43
44 I say it is different, for this reason, that the principle
45 which underlies, as we understand the authorities, the
46 waiver of privilege and its extent is that if a party
47 chooses -- and it really underlies the reference with
48 discovery -- if a party chooses to deploy a piece of
49 information in court to his own advantage, it is only fair
50 that the court and the other side should see the whole of
51 the relevant material, so as to see that -- and this is the
52 effect of Great Atlantic Insurance, I am sure -- so as to
53 see the parties deploying the evidence has not, as it were,
54 cheated, that the evidence is reliable, so as to be able to
55 test it.
56
57 I find that principle -- which is, quite obviously, a right
58 principle -- very difficult to reconcile with what is
59 obviously also a right principle, that when one serves a
60 witness statement or an affidavit, or whatever, one does
