Day 157 - 18 Jul 95 - Page 53
1 used the transcripts for any other purpose whatsoever,
2 though it is true, having paid for it, they might be
3 entitled to do so.
4
5 Finally, my Lord, the letter says this:
6
7 "You would have to signify your understanding
8 and acceptance of all these conditions in
9 writing to us."
10
11 My Lord, we find it very difficult to see, in fact we find
12 it impossible to see, how it can sensibly be argued that
13 that places any fetter on the Defendants whatsoever in the
14 conduct of the litigation whether to give that undertaking,
15 albeit that it would impose as much of a fetter as we could
16 possibly create on their disseminating the material for
17 ulterior purposes.
18
19 As I said a moment ago, the remedy is in the Defendants'
20 own hands. If they think it is unfair they do not have the
21 transcripts, why, then, they just say, "That is fine; we
22 would like the transcripts to use for the case and we will
23 not use them for any other purpose."
24
25 My Lord, then I pass to discovery. Again, I will deal with
26 this only briefly.
27
28 The starting point must be Order 24, rule 1 and Order 24,
29 rule 2(1), which are respectively on pages 431 and 434 of
30 the White Book, 1(1) and 2(1). Your Lordship has them well
31 in mind.
32
33 MR. JUSTICE BELL: Yes, I do. Let me organise my papers.
34
35 MR. RAMPTON: My Lord, to summarise it, a document is
36 disclosable if it is relevant to any matter in question
37 between the parties in the action. So well known that I do
38 not have to read the rule out.
39
40 The rhetorical question in the context of discovery is what
41 is or might be the matter in question between the parties
42 to this action that a transcript of the evidence given in
43 court might be relevant? One can answer that this way:
44 The matter in question to which the transcripts relate, and
45 only relate, is this: What did the witnesses say when they
46 gave evidence in court?
47
48 As your Lordship rightly pointed out in argument when the
49 Defendants were on their feet, it might very well be that
50 in a subsequent action the question, "what did a witness
51 say in court", was very much an issue between the parties.
52 Suppose, for example, a newspaper is sued for libel on the
53 ground that it has published an unfair or inaccurate report
54 of the proceedings, or previous proceedings, then the
55 question is very much what was actually said in court. In
56 that case transcripts of the previous proceedings in the
57 hands of one of the parties, two, or, indeed, both of the
58 parties to the defamation action against the newspaper
59 would certainly be disclosable documents. The case your
60 Lordship mentioned about the judge's summing was, I think,
