Day 083 - 06 Feb 95 - Page 24


     
     1
     2   MR. RAMPTON:  Weddel was the agent, the Vesty agent.  But
     3        plainly not so far as Vesty or Weddel -----
     4
     5   MR. JUSTICE BELL:  So they just would not appear on the list,
     6        even if they existed and your clients knew about them?
     7
     8   MR. RAMPTON:  Your Lordship should recall that the Vesty letter
     9        which gave rise to all this Brazilian question was
    10        disclosed by accident in the sense that it was part of
    11        Barlow's Duke of Edinburgh file.  Mr. Walker then
    12        volunteered a whole lot of documents which were not in the
    13        possession of McDonald's or Barlow's when he went into the
    14        witness box just before, in fact, which we never knew that
    15        he had.  But even if we had known that he had them, it is
    16        very doubtful if our analysis of the law is correct that we
    17        could have asked him to produce them.
    18
    19   MR. JUSTICE BELL:  It is a matter of some practical importance
    20        because if it is correct that by and large your clients
    21        destroy documents, say, two or three years after they feel
    22        they have any practical bite, it might well be that there
    23        are documents which are relevant which are in the
    24        possession of people somewhere in the chain, but which by
    25        your definition are not in the First or Second Plaintiffs'
    26        power and, therefore, would not see the light of day on any
    27        list.
    28
    29   MR. RAMPTON:  Nor should they.  My Lord, I thought it right,
    30        your Lordship asked anyway what authority there was about
    31        the meaning of power, and so we have done this analysis.
    32        Your Lordship may say that our analysis is wrong.  But if
    33        we are right about it, then it is an important
    34        consideration for this reason.  Thus far in this case we
    35        have, I hope your Lordship would agree, been quite
    36        assiduous about getting our suppliers to disclose documents
    37        for the purpose of this litigation.  That includes people
    38        not just McKey's but other people besides.
    39
    40        What I am concerned about (which is why, if we are right
    41        about the law, we would stand on our strict legal rights)
    42        is that the Defendants appear to think that our heretofor
    43        generosity and flexibility in relation to documents which
    44        are not, strictly speaking, ours to disclose -- we have had
    45        to ask other people to disclose -- the Defendants seem to
    46        see that as an open door through which to walk with a very
    47        large fishing net.
    48
    49        My Lord, if that should continue and if, as a matter of
    50        law, we are entitled to do so, then I am afraid that we 
    51        will pull down the portcullis and put up the drawbridge and 
    52        that will be the end of it.  That may not be a very helpful 
    53        approach so far as your Lordship is concerned, but we do
    54        have to consider the position of our own clients and our
    55        own clients' suppliers in all of this.
    56
    57        My Lord, if we are right about the legal position, then we
    58        can adopt that stance without having recourse to the
    59        discretionary part of Order 24 which allows your Lordship
    60        to say:  "Well, even if there is a strict obligation, it is

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