Day 262 - 13 Jun 96 - Page 64
1 required by the rules) with information in
2 writing as to the facts of the case he as he saw
3 them in order to satisfy them that it was proper
4 for them to sanction the employment of a
5 solicitor to conduct the case and also for use
6 by the solicitor in the conduct of the action if
7 the employment of the solicitor was sanctioned.
8 This House held that the letters in question
9 were not the question of legal professional
10 privilege because the union authorities had
11 themselves to consider them and act on them
12 before the solicitor was employed to conduct the
13 case. So here the commissioners had to form
14 their own opinion as to value before the
15 solicitor would use the documents for the
16 purpose of defending their opinion in the
17 anticipated arbitration."
18
19 So, in the context of this case, the Plaintiffs, through
20 their solicitors, engaged inquiry agents who themselves
21 engaged agents in the field. At the very least, the
22 reports were, in part, furnished to Mr. Nicholson direct;
23 others to the Plaintiffs' solicitors. No doubt, they were
24 passed on to Mr. Nicholson.
25
26 It would appear on the face of the evidence, there had not
27 been a decision taken to engage in litigation. The
28 apparent purpose, as given in evidence, for the instruction
29 of the agents was to discover the identities of people and
30 to advance matters, perhaps by sending a solicitor's
31 letter, in the hope that those that were deemed to be
32 responsible would desist from their actions.
33
34 The decision whether or not to litigate is that of the
35 Plaintiffs, not of the solicitors. The mere fact that they
36 engaged solicitors in part of the process of assisting them
37 to make a decision means, in my respectful submission, that
38 they come within the case of Jones v. Great Central Railway
39 and the case of Alfred Compton Amusement Machines Ltd. v.
40 Customs and Excise.
41
42 Even if the Plaintiffs had thought, as was made clear in
43 the case of Alfred Compton, that it was likely that
44 litigation would result, that the letter or other
45 approaches would be ignored, then that still does not bring
46 the Plaintiffs within the field of privilege in relation to
47 those documents.
48
49 In my respectful submission, clearly, in the light of those
50 two authorities and the evidence in this case, there are
51 clearly a number of issues that your Lordship has to decide
52 about.
53
54 MR. JUSTICE BELL: What would the position be if the purpose, or
55 part of the purpose, was to get advice on whether to sue
56 and who and when, if need be, but also to get advice on
57 whether there were individuals who could be held
58 responsible for what the Plaintiffs viewed as defamatory
59 material which was being issued under the name of an
60 unincorporated organisation? Suppose it was investigations
