Day 263 - 14 Jun 96 - Page 34
1 reference to the way in which Mustill J. decided the list
2 of questions issue. My Lord, I do not find it very much
3 easier than I did yesterday, but I do believe that
4 your Lordship may find assistance in this case in deciding
5 that question.
6
7 MR. JUSTICE BELL: Yes.
8
9 MR. RAMPTON: My primary submission remains, however, that
10 whether or not your Lordship should decide that meetings
11 attended by Mr. Bishop or any other witnesses that I call
12 involve a waiver of privilege for other notes on that same
13 meeting, relevant parts of other notes for that same
14 meeting, that is the extent of it. It does not go any
15 further than that; and there is certainly no knock-on or
16 progressive waiver in the manner which, as I say,
17 Hobhouse J. described as absurd.
18
19 My Lord, the only other thing which I would mention, if
20 your Lordship wanted me to, was the question of overall
21 privilege from the beginning and the question of dominant
22 purpose. Perhaps it does not need me to do any more than
23 to say two things. It is clear that the cases of
24 Jones and Alfred Compton were cases in which the dominant
25 purpose was not submission of the material to the lawyers.
26 Jones was a case of the member of the union trying to
27 persuade the executive committee to pay for the lawyer, and
28 that was the dominant purpose of the documents' creation in
29 what case. In Alfred Compton, the dominant purpose was
30 that the commissioners wanted to consider the material for
31 their own purposes; though no doubt the possibility of
32 litigation lurked in the background.
33
34 In this case, my Lord, no purpose other than the
35 possibility of litigation and, more particularly perhaps,
36 the obtaining of advice from Barlow Lyde & Gilbert about
37 the merits of litigation, the question of who should be
38 sued and in what circumstances, no other purpose (let alone
39 any other dominant purpose) has been even faintly suggested
40 or, I would suggest, on the facts, could be. The facts of
41 the case as deposed to by Mr. Preston and Mr. Nicholson do
42 not allow of any other possible purpose.
43
44 MR. JUSTICE BELL: Yes. Thank you.
45
46 MR. MORRIS: Before we go to lunch, can I make one comment on
47 this extra -----
48
49 MR. JUSTICE BELL: What I suggest you do is, if you want to make
50 a comment on Nea Karteria, I will hear you about that.
51
52 MR. RAMPTON: My Lord, there is one other point. Your Lordship
53 has correctly identified the distance between the parties
54 on the blanking out question, which is a question of what
55 is the right test of relevance. I said all I need to say
56 about when I opened this argument. I would only say this
57 in relation to Ms. Steel's overall picture: it is quite
58 clear that there are passages which have been blanked out
59 in the notes and do not concern either the Defendants or
60 McDonald's, that the proportion which McDonald's bears to
