Day 262 - 13 Jun 96 - Page 79
1
2 On page 537 of the report the court deals with the third
3 question, which was "whether privilege in respect of the
4 memorandum dated May 2, 1980, was in fact waived by or on
5 behalf of the plaintiffs. Neither the plaintiffs nor any
6 of the plaintiffs' legal advisers intended to waive any
7 privilege."
8
9 Under that heading, and going onto the next page, page 538,
10 towards the end of the court dealing with this particular
11 question, the following is reported:
12
13 "I agree and would only add that it would not
14 be satisfactory for the court to decide that
15 part of a privileged document can be introduced
16 without waiving privilege with regard to the
17 other part in the absence of informed argument
18 to the contrary, and there can be no informed
19 argument without the disclosure which would make
20 argument unnecessary".
21
22 I skip four or five lines:
23
24 "In my judgment, however, the rule that
25 privilege relating to a document which deals
26 with one subject matter cannot be waived as to
27 part and asserted as to the remainder is based
28 on the possibility that any use of part of a
29 document may be unfair or misleading, that the
30 party who possesses the document is clearly not
31 the person who can decide whether a partial
32 disclosure is misleading or not, nor can the
33 judge decide without hearing argument, nor can
34 he hear argument unless the document is
35 disclosed as a whole to the other side. Once
36 disclosure has taken place by introducing part
37 of the document into evidence or using it in
38 court it cannot be erased."
39
40 Now, I appreciate that that was said in the context of a
41 claim of privilege in relation to parts of a document, but,
42 in my submission, in dealing with the particular documents
43 in this case and the fact that privilege is claimed for
44 similar documents relating to other people, that it would
45 be appropriate for your Lordship to require the Plaintiffs
46 to disclose the parts that have been blanked out so that
47 you can hear full argument about the relevance. To hold
48 otherwise would mean that the Defendants are in this
49 position: They do not hold those documents and they have
50 no opportunity of knowing what those blanked out passages
51 contain.
52
53 It would be impossible, in those circumstances, to persuade
54 you of the relevance of passages of a document that they
55 cannot read without, themselves, being in a position to
56 consider the contents. If, of course, they are irrelevant,
57 then there are appropriate steps that can be taken to
58 control cross-examination of those passages. It is one
59 thing to order disclosure. It is another thing, of course,
60 to rule on the relevancy of the matter that is being
