Day 263 - 14 Jun 96 - Page 31


     
     1             have an opportunity of satisfying themselves
     2             that what the party has chosen to release from
     3             privilege represents the whole of the material
     4             relevant to the issue in question.  To allow an
     5             individual item to be plucked out of context
     6             would be to risk injustice through its real
     7             weight or meaning being misunderstood.  In my
     8             view, the same principle can be seen at work in
     9             Doland v. Blackburn, in a rather different
    10             context.
    11
    12                  "In these circumstances, I consider that
    13             the court must ask itself whether the Plaintiffs
    14             have made use of the boatswain's statement
    15             before the face of the court.  Plainly they did
    16             not do so when they put to the seaman in 1975,
    17             for this was on a privileged occasion.  Nor in
    18             my view did they make the boatswain's statement
    19             part of the material in the action when they
    20             cross-examined the seaman on paras 14 and 15 of
    21             his statement dated 1 November 1978.  What the
    22             Plaintiffs were taxing him was not the previous
    23             statement of the boatswain, but his own previous
    24             statement; and the fact that this statement took
    25             the shape of an assent to something previously
    26             said by the boatswain does not mean that the
    27             boatswain's statement is thereby made part of
    28             the material which the Plaintiffs were asking
    29             the court to take into account.  It is the
    30             assent which matters, not the source of the
    31             material to which assent was given."
    32
    33        Then he held that the plaintiffs had not waived the
    34        privilege in the boatswain's statement.
    35
    36        Can I draw a parallel with this case, which may mean that
    37        the difficulty which your Lordship sees and which I saw
    38        yesterday, and still do see to some extent, is more
    39        apparent than real.  If this judgment is right -- although
    40        it is a high authority, given the person who delivered it
    41         -- it is only, so far as your Lordship is concerned,
    42        persuasive and not binding.  If, in this case, Mrs. Tiller
    43        comes to give evidence and if, when I cross-examine her,
    44        I use the notes she made or the report based upon her
    45        notes, then, without any question, I shall have waived the
    46        privilege in that report or those notes.  In so far as they
    47        are relevant, they are disclosable at that point as a
    48        matter of fact, although, to avoid inconvenience, I would
    49        do it before she gave evidence, once I was sure she was
    50        going to give evidence.  Suppose, my Lord, that in the body 
    51        of those notes or that report she had made reference to 
    52        something said on the same occasion by Michelle Hooker. 
    53        Following Mustill J., though I would be bound to accept
    54        that I had waived the privilege in Mrs. Tiller's notes,
    55        I would note have waived the privilege in any notes that
    56        Michelle Hooker might have taken of the same occasion,
    57        because it would not be material before the court and
    58        I would not have deployed it in evidence.
    59
    60        My Lord, that may be the correct test.  In effect,

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