Day 262 - 13 Jun 96 - Page 41


     
     1        severable piece of information; so that if it had been
     2        contained in a separate document, it would not have been
     3        disclosable.
     4
     5        My Lord, I am quite attempted to illustrate what I am
     6        talking about by showing your Lordship one, or perhaps two,
     7        of the parts of the notes which have been blanked out.
     8        I do not really like to take that course, because it may be
     9        thought that I am again -- the Defendants will certainly
    10        think it -- being selective.
    11
    12   MR. MORRIS:  We could always suggest something at random.  It
    13        would more of a realistic check.
    14
    15   MR. JUSTICE BELL:  If one is talking about blanked out pieces,
    16        if you state that that is the basis upon which you have
    17        done it, I would suggest it is for the Defendants to
    18        suggest what there might be which has not been disclosed
    19        either in the notes of other occasions or in parts blanked
    20        out.  You mention Great Atlantic, but the case I have
    21        followed so far in relation to parts blanked out has been
    22        the GE Capital case.
    23
    24   MR. RAMPTON:  That is absolutely right.  GE Capital is the
    25        starting point, because, whatever the status of privileged
    26        material, the only information, whether it is privileged or
    27        not, which is disclosable according to Peruvian Guano, is
    28        material which is relevant; and that must always be the
    29        starting point; it must be relevance, which is why I have
    30        started with relevance.
    31
    32        It is absolutely no good -- and I mean no good, because my
    33        principal concern with relevance is the use of court time;
    34        one sees what happens, and I make no bones about this.
    35        I do not really blame the Defendants, because they are not
    36        trained lawyers, but you give them material which is
    37        marginally relevant, and they spend hours poring over it in
    38        court with witnesses.
    39
    40        I have not blanked out -- well, Mr. Atkinson and I, because
    41        it was a joint exercise -- Mr. Atkinson and I have not
    42        blanked out anything which is even marginally relevant, so
    43        far as we can see, applying the criteria which I have just
    44        proposed to your Lordship, as we see, what the relevant
    45        issues are.  Nor have we not disclosed any notes about
    46        occasions which the Defendants do not know about for any
    47        reason other -- apart from privilege -- than that there was
    48        nothing of any relevance on those occasions; neither the
    49        presence of the Defendants nor any mention of McDonald's.
    50 
    51        There is one additional feature in relation to relevance, a 
    52        specific feature, which I believe I ought to outline now. 
    53        We did not make, and never have made, any allegation that
    54        the leaflet complained of was published after the date of
    55        the issue of the writ, save for two particular exceptions.
    56        One is, I think, 30th June 1994, about which Mr. Howes has
    57        recently given evidence; and the other -- whose date I have
    58        forgotten, which was more recent than that, it is in
    59        1996 -- was the putting on to the Internet by the
    60        Defendants, or at their behest, of the whole of the words

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