Day 262 - 13 Jun 96 - Page 56
1 not waiver privilege in the underlying or background
2 information from which that affidavit or those witness
3 statements were compiled; that is to say, links like
4 solicitors' notes, drafts, and so on.
5
6 I fear that I cannot offer your Lordship, because I find it
7 impossible as a matter of logic to do so, I cannot
8 reconcile those two apparently competing principles.
9
10 MR. JUSTICE BELL: Is that a practical problem in this case?
11
12 MR. RAMPTON: It is to this extent -- and this is where I see
13 the problem arising -- it does not arise in any sense at
14 all in relation to occasions where we have not offered any
15 evidence. That is quite obvious. Where it might arise --
16 and this, I foresee, is a matter for your Lordship, is the
17 real kernel of the matter your Lordship has to decide --
18 where it might arise is in relation to meetings attended by
19 the witnesses that I have called and will call, where
20 I have deployed the evidence and where I have disclosed the
21 relevant parts of the notes, because I can see I have to do
22 that; not least because their memories are so fallible
23 after so long a period of time. But I have to do it anyway
24 when I call them as witnesses. The problem might arise
25 where those meetings, those particular meetings, were also
26 attended by somebody that I have not called.
27
28 It might be argued -- and this is where I see the
29 difficulty -- that, "Oh, well, you have chosen to deploy
30 that witness and those notes. Though you have not called
31 the other potential witness -- and, certainly, there is
32 nothing that can be done to make me to call that witness --
33 you have chosen not to, you have exercised your right not
34 to call that witness; nevertheless, the notes that that
35 witness took of that occasion are associated with or
36 connected to the transaction which you have called a
37 witness to tell the court about. That is where I see the
38 difficulty arising. I deal with it.
39
40 MR. JUSTICE BELL: What would you argue the position should be?
41
42 MR. RAMPTON: I was going to say, I go on from that to say that,
43 though in a sense that is an attractive argument, it is, we
44 believe, somewhat to distort the reality. For one thing,
45 it goes further than the authorities actually warrant,
46 although I can see how it can be fitted into the
47 authorities. Second, it cuts right across the whole
48 principle of what witnesses you choose to call. Take a
49 mundane example. Suppose one had a car accident in the
50 street, and suppose the solicitor went and interviewed six
51 witnesses, and suppose he did that pretty sharply after the
52 accident, and he took notes of what they had to say,
53 obviously contemplating that he might have to prosecute a
54 claim in the courts. When he has thought about it and
55 discussed it with his client, he decides, having
56 interviewed six people, he is only going to call three.
57
58 MR. JUSTICE BELL: It would have very far-reaching
59 ramifications.
60
