Day 262 - 13 Jun 96 - Page 67
1 which claim attention, I have come to the
2 conclusion that the court should state the
3 relevant principle as follows: a document which
4 was produced or brought into existence either
5 with the dominant purpose of its author, or of
6 the person or authority under whose direction,
7 whether particular or general, it was produced
8 or brought into existence, of using it or its
9 contents in order to obtain legal advice or to
10 aid in the conduct of litigation, at the time of
11 its production in reasonable prospect, should be
12 privileged and excluded from inspection."
13
14 The words I emphasise there are "at the time of its
15 production".
16
17 MR. JUSTICE BELL: Yes. Can I draw a line after "legal
18 advice"? I mean, it may make no difference in this case,
19 but provided it is produced or provided it is brought into
20 existence, the dominant purpose of obtaining legal advice
21 or the dominant purpose of conducting or aiding in
22 conducting of litigation which was at least in reasonable
23 prospect at the time.
24
25 MR. HALL: Yes. It is at the time of its production.
26
27 MR. JUSTICE BELL: Yes.
28
29 MR. HALL: That point is developed a little later, halfway
30 through paragraph E.
31
32 "To begin with, it seems to me, both on the
33 facts which I have recited and on the
34 unchallenged statements in the affidavits, to be
35 quite unarguable that, at the material time,
36 when the reports were commissioned and brought
37 into being, litigation was not in reasonable
38 prospect."
39
40
41 A clear reference there to "at the material time" being
42 referable in that case to when the reports were
43 commissioned and brought into being.
44
45 The complication, of course, in this case for your Lordship
46 is the length of time over which such a large number of
47 reports were, in fact, brought into being. However, in my
48 respectful submission, the material time is some time
49 between July 1989 and September or October 1989.
50
51 MR. JUSTICE BELL: I have just read the paragraph at the bottom
52 of page 173. I suppose I could ask myself whether what
53 Oliver L.J. canvassed there is analogous to the situation
54 here or not.
55
56 MR. HALL: Yes, yes. But in respect of -----
57
58 MR. JUSTICE BELL: For "cause of fire" substitute "the identity
59 of the people responsible for distributing the leaflet".
60
