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

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