Day 262 - 13 Jun 96 - Page 70
1 your Lordship had the report actually at that moment. It
2 was a little time ago.
3
4 MR. JUSTICE BELL: I do not think I have ever had a copy of it.
5
6 MR. RAMPTON: We have a spare. Your Lordship can write on it.
7
8 MR. JUSTICE BELL: Thank you. (Handed). Yes?
9
10 MR. HALL: A persuasive rather than a binding authority, though
11 I would accept an authority of significant weight. Indeed,
12 it is heavily relied upon by the Plaintiffs. It is partly
13 for that reason that I would start this submission with
14 this authority.
15
16 It was held in that case:
17
18 "... that it was only where privileged material
19 was adduced in evidence by the party to whom the
20 privilege attached, that waiver of privilege
21 extended to other matter coming into existence
22 after, but relating to, the transaction in
23 respect of which the evidence was adduced".
24
25 I stop there because the word most relevant for the
26 purposes of this submission is the word "transaction", and
27 it is a word that has been used in submissions before you
28 and repeated, to some extent, in one or two other
29 authorities. One of the issues, in my respectful
30 submission, that your Lordship has to decide is what is a
31 transaction for the purposes of privilege and how does that
32 apply in this case?
33
34 On first view of the word, in the context in which it is
35 being used in General Accident v. Tanter, it might be
36 thought merely to be one limited. But, in my submission,
37 it is not so limited. If it was so limited, then in this
38 case what is the transaction or transactions in question?
39 Are the transactions the making of each set of notes for
40 each meeting by each agent, or the drafting of each report
41 that was submitted, or could it be that the relevant
42 transaction in this case is the instructing of the inquiry
43 agents to conduct their inquiries? So, in effect, it is
44 the instructing of the firm of Bishops to engage agents to
45 gather information.
46
47 MR. JUSTICE BELL: Yes, but is that what transaction means at
48 all? I mean, transaction here, the substance of the
49 evidence adduced was a conversation, then the relevant
50 transaction for the purpose of determining the extent of
51 the waiver was the content of the conversation.
52
53 MR. HALL: Yes, I agree. I accept that.
54
55 MR. JUSTICE BELL: Then is not the transaction here the content
56 of a particular meeting of London Greenpeace or a
57 particular event? Then I wondered if you were going to
58 argue, well, no, the actual transaction is the alleged
59 participation in publication of the leaflet or involvement
60 in the activities of London Greenpeace alleged to be
