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

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