Day 262 - 13 Jun 96 - Page 68


     
     1   MR. HALL:  Yes.  I could not possibly argue that any of the
     2        authorities that I have read is on all fours with this
     3        case.  Indeed, comparing between the different authorities,
     4        it is difficult to argue that any of them are on all fours
     5        with each other.
     6
     7        The difficulty that that leaves any court with is
     8        determining what are the appropriate general principles to
     9        apply.  In my respectful submission, the first one is to
    10        determine what is the nature of the relationship between
    11        the various groups on the Plaintiffs' side to see whether
    12        or not it is such a relationship that could attract the
    13        claimed privilege.
    14
    15        The second area for consideration is what was the material
    16        time for you to consider in relation to these documents.
    17        I make the next point as a general observation, although
    18        I do recall at some point reading some reference to it in
    19        an authority.  It is easy now, a number of years into a
    20        case -- certainly several years since the litigation
    21        began -- to look back and say, well, the dominant purpose
    22        was this litigation.  But, in doing so, it easy to mislead
    23        oneself into thinking that at the time that was the
    24        dominant purpose and, to some extent, the process that has
    25        to be gone to is to identify what, in fact, happened at the
    26        time and what was the relevant parties' intent.  That is
    27        why I invite your Lordship to consider this particular
    28        authority concerning material time, and it was clear in
    29        that case that the material time was when the report was
    30        commissioned and when the reports were produced.  Clearly,
    31        the court had to put out of its mind the fact that
    32        litigation followed.  The Plaintiffs claimed that
    33        litigation was the dominant purpose, but then that is with
    34        the inevitable benefit of 20/20 vision that only hindsight
    35        can give you.
    36
    37        I would repeat that it really is a matter for the
    38        Plaintiffs to have adduced evidence as to what was in the
    39        minds of the relevant parties at the material time, rather
    40        than rely upon the hindsight that Mr. Nicholson came to at
    41        the end of his evidence on this point.  As I understand it,
    42        there were some three or four pages prior to that
    43        particular answer where he has -----
    44
    45   MR. JUSTICE BELL:  I do not want to trouble you necessarily with
    46        the evidence because, if need be, Ms. Steel and Mr. Morris
    47        can tell me about that tomorrow morning.  But if I were to
    48        think that the purpose of commissioning the investigation
    49        was to identify those individuals who were responsible for
    50        publication in order to stop further publication by 
    51        proceedings if publication persisted, despite any 
    52        solicitors' letters, then would the investigations and any 
    53        subsequent notes and reports be covered by privilege?
    54
    55   MR. HALL:  Not under content, in my respectful submission.  It
    56        depends on how strong that purpose was.  If the Plaintiffs
    57        were, prior to the instruction of the inquiry agents or the
    58        production of the reports, determined that there would be
    59        litigation, then that would clearly be the dominant
    60        purpose.  But if they were not so determined, then that

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