Day 263 - 14 Jun 96 - Page 30


     
     1        was a seaman) the Plaintiffs counsel used a document which
     2        was privileged in the hands of his clients, the
     3        Plaintiffs.  That document contained an account of an
     4        inconsistent statement by the witness, but also an account
     5        of a statement made out of court on a privileged occasion
     6        by another potential witness, the boatswain of the ship.
     7
     8        What Mustill J. held was that though privilege had been
     9        waived in respect of the statement by the seaman on a
    10        previous privileged occasion, not so in relation to the
    11        statement of the boatswain which had been incorporated by
    12        reference into the document.
    13
    14        My Lord, there is a helpful little passage from
    15        Lyell v. Kennedy at the bottom of the first column.  It is
    16        also, I think, cited by Hobhouse J. where he thought of the
    17        cardinal citation in the General Accident case.  It is from
    18        Cotton L.J.'s judgment.  Starting a few lines up from the
    19        bottom, I will read what Mustill J. said.
    20
    21             "In Lyell v. Kennedy...the Court of Appeal was
    22             concerned to deal with a series of complex
    23             issues on interrogatories and discovery.  In the
    24             course of discussion on the later topic, Cotton
    25             L.J. said, at p 24: 'There was this contention
    26             raised, which I have not forgotten:  that the
    27             defendant had waived his privilege, and
    28             therefore could not claim it at all.  That, in
    29             my opinion, was entirely fallacious.  He had
    30             done this, he had said, "Whether I am entitled
    31             to protect them or not I will produce certain of
    32             the documents for which I had previously claimed
    33             privilege -- I will waive that, and I will
    34             produce them," but that did not prevent him
    35             relying on such protection with regard to others
    36             which he did not like to produce.  It is not
    37             like the case of a man who gives part of a
    38             conversation and then claims protection for the
    39             remainder, and we think there is no ground for
    40             the contention that there has been here a waiver
    41             of privilege."
    42
    43        My Lord, the way in which Mustill J. approached this
    44        question in relation to the incorporated statement of the
    45        boatswain, which one might have thought at first sight the
    46        privilege had plainly been waived, was, as we can see --
    47        and I will not read it all -- but one can see at the bottom
    48        of the first column on page 139, which is the next page, to
    49        ask itself the question: has that material been deployed in
    50        court; has it become part of the material before the court? 
    51        He answered that question in the negative.  At the top of 
    52        the right-hand column on page 139, he said this: 
    53
    54             "In my view this distinction is of crucial
    55             importance in the present issue.  I believe that
    56             the principle underlying the rule of practice
    57             exemplified by Bucknell v. British Transport
    58             Commission is that where a party is deploying in
    59             court material which would otherwise be
    60             privileged the opposite party and the court must

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