Day 165 - 27 Sep 95 - Page 29
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2 MR. MORRIS: -- or research.
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4 MR. JUSTICE BELL: All this would be a matter of argument if you
5 were making an application for return of the document which
6 is the form it has to take. It only it comes out of the
7 bundle if it is clearly irrelevant, which we have not got
8 to arguing, or if you make a successful application for
9 return the document. If you succeed on that, then any copy
10 comes out of the bundle.
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12 MR. RAMPTON: My Lord, I am not -----
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14 MR. JUSTICE BELL: Do you actually rely on it?
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16 MR. RAMPTON: Yes, I do. It actually has some quite significant
17 material in it, as it happens. What it is I am certainly
18 not going to say at this juncture. But Mr. Morris and
19 Ms. Steel, if they are going to make an application for the
20 return of this document, must give your Lordship proper
21 grounds -- if I think they are proper grounds, I will not
22 contest it -- for saying: "This is a privileged document".
23 Mr. Morris, apparently, does not even know to whom it was
24 addressed yet he says it is sent to a potential witness.
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26 MR. JUSTICE BELL: Can you tell who signed under "in
27 solidarity" at the bottom?
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29 MR. RAMPTON: He might even recognise the handwriting, for all
30 I know. He has to do it in proper form.
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32 MR. JUSTICE BELL: Mr. Morris, the point which troubles me is
33 this, that there has been authority on the circumstances in
34 which, if a document of one party, in respect of which they
35 can claim privilege, falls into the hands of the other
36 side, then the circumstances in which they can recover it
37 are the subject of authority. It is not just a question of
38 saying: "It is our document; we must have it back" or "It
39 is privileged because it includes a communication to a
40 potential witness with a view to preparation of the case".
41 There is more to it than that. You have to be able to tell
42 me what the law is so I can apply it to whatever I find the
43 facts are. There might even have to be evidence on oath in
44 relation to it.
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46 MR. MORRIS: The way I see it, the way I understand the law, and
47 it applied when the Plaintiffs mistakingly disclosed one of
48 their -----
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50 MR. JUSTICE BELL: Have you actually got the cases with you?
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52 MR. MORRIS: No, but we did have this argument before over the
53 document that we had.
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55 MR. JUSTICE BELL: I know and we did not actually get to argue
56 it. We were going to have a set piece argument with all
57 the authorities there and arguments on one side or another,
58 and we adjourned one afternoon until the following morning
59 so that all the authorities could be got together and both
60 sides could get their houses in order. When we came back
