Day 263 - 14 Jun 96 - Page 06


     
     1
     2   MS. STEEL:   OK.
     3
     4   MR. MORRIS:  On the subject of whether the litigation was
     5        reasonably in prospect, obviously, we have a kind of
     6        interesting situation where the Plaintiffs are arguing one
     7        thing in a legal argument and another thing in terms of
     8        their case.  Mr. Nicholson was asked, on the last day he
     9        attended -- I cannot remember the date now; it was when
    10        Mr. Rampton referred to on page 57, do you remember, when
    11        his -----
    12
    13   MR. JUSTICE BELL:  Yes, I read that through.
    14
    15   MR. MORRIS:  Obviously, on page 55 it was slightly different, at
    16        line 40 -- and I will not read the whole context.
    17
    18   MR. JUSTICE BELL:  I have it very much in mind.  It is
    19        considerable irony that both you and Ms. Steel are pressing
    20        him to accept that it was litigation only from the start
    21        and -----
    22
    23   MR. MORRIS:  Yes.
    24
    25   MR. JUSTICE BELL:  Both sides have changed shirts, to some
    26        extent.
    27
    28   MR. MORRIS:  Yes.
    29
    30   MR. JUSTICE BELL:  But there we are.  I just have to reach my
    31        impression in relation to it.
    32
    33   MR. MORRIS:  Yes.
    34
    35   MR. JUSTICE BELL:  Although you will be at liberty to argue in
    36        the future, at the end of the day, what the situation is,
    37        I have to form it on the evidence and information available
    38        to me at the moment.
    39
    40   MR. MORRIS:  Yes.
    41
    42   MR. JUSTICE BELL:  You just shortly put your points, so I can
    43        make a note of them and think about them.
    44
    45   MR. MORRIS:  Yes.  If it was thought that the litigation was
    46        dominant purpose, then of course that would put a colour on
    47        the evidence in other areas; in this area, but not related
    48        to the present legal dispute -- although he did say on
    49        page 55, I said to him:  "You say it was a distinct
    50        possibility you were going to", and then he 
    51        interrupted: "No, there was possibility, there was a always 
    52        a possibility we would end in up litigation."  So he 
    53        started off with it was just a possibility and option, and
    54        by page 57 he had, basically, effectively said it was a
    55        dominant purpose. Anyway, that is all I have to say on
    56        that, really.
    57
    58        In any event, of course, we argue that privilege has been
    59        waived.  The course of conduct leading to the
    60        documentation, we would say, is a completely unified single

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