Day 262 - 13 Jun 96 - Page 66
1
2 The authority of Re Highgate Traders Ltd. is, to some
3 extent, relevant on this point.
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5 MR. JUSTICE BELL: Is that 1980?
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7 MR. HALL: Yes. It is reported [1984] BCLC, 151. I will not
8 trouble your Lordship at this point with a detailed reading
9 from the headnote, but the first point in the appeal
10 appears to be concerning dominant purpose; and it is said
11 in the first part of the headnote that documents brought
12 into being -----
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14 MR. JUSTICE BELL: It is helpful just to see what kind of
15 documents one is considering and who they were made to.
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17 MR. HALL: Yes. The principal document is a report on a fire.
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19 MR. JUSTICE BELL: Yes -- by loss adjusters.
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21 MR. HALL: There were other matters concerned with the
22 liquidation of the company, but they go to another point of
23 appeal in that case.
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25 MR. JUSTICE BELL: Yes.
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27 MR. HALL: In relation to the report on the fire, the Court of
28 Appeal held:
29
30 "Documents brought into being with the dominant
31 purpose of obtaining legal advice as to whether
32 a legal claim should be made or resisted and
33 which would lead to a decision whether or not to
34 litigate were protected by legal professional
35 privilege and it was not necessary that the
36 documents be brought into existence for the
37 dominant purpose of actually being used in
38 evidence...."
39
40 -- and so on. That is of course, perhaps, implicit in
41 relation to other authorities. But to advance the point
42 that I am inviting your Lordship to consider, I would ask
43 you to look at page 173 of that report. Perhaps I should
44 begin at the bottom of page 172, where there is a
45 discussion of the Waugh case, five lines up from the
46 bottom:
47
48 "...if litigation is reasonably in prospect,
49 documents bought into being for the purpose of
50 enabling the solicitors to advise whether a
51 claim shall be made or resisted are protected by
52 privilege, subject only to the caveat that that
53 is the dominant purpose for there having been
54 brought into being."
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56 Then, over the page, page 173, there is a passage from
57 judgment of Lord Edmund-Davies in the Waugh case cited:
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59 "Having considered the decisions, the writings
60 and the various aspects of the public interest
