Day 262 - 13 Jun 96 - Page 43


     
     1        to say, which we have not preferred evidence about, had
     2        said, "Oh, well, this McDonald's campaign has really run
     3        its course, let's forget it", that would be relevant.
     4        Then, very likely, we would have proffered it in evidence.
     5        But, in fact, there is no such occasion.
     6
     7        The occasions which have not been revealed (if I may put it
     8        like that) are occasions on which, as I have said, nothing
     9        relevant to the issues in this case took place; neither
    10        Mr. Morris, nor Ms. Steel, nor any discussion, negative or
    11        positive, about the McDonald's campaign.
    12
    13        The overall activities of the group are, in our respectful
    14        submission, wholly and completely irrelevant as an issue on
    15        their own.  All that matters is what the group was doing
    16        through 1990 or thinking or saying about McDonald's.  That
    17        is what our evidence is directed to.
    18
    19        My Lord, that is all I have to say about relevance.  May
    20        I now pass on to dominant purpose?
    21
    22   MR. MORRIS:  Could we just have a couple of minutes' break --
    23        not a break, but a couple of minutes to just, you know,
    24        catch up with our notes?
    25
    26   MR. JUSTICE BELL:  Just take a moment.  (Pause)  Yes.
    27
    28   MR. RAMPTON:  My Lord, can I start by saying what I believe the
    29        correct test for determination of dominant purpose is?
    30
    31   MR. JUSTICE BELL:  You had better lead into dominant purpose,
    32        because I have not -- I mean, obviously I know a bit about
    33        that, and I remember cases like Waugh, and so on.  But
    34        I would like you to set it, if you could, in the context of
    35        this case, because Mr. Hall, in his skeleton -- are you
    36        talking of dominant purpose relating to proceedings or just
    37        legal advice generally, or both?
    38
    39   MR. RAMPTON:  No, my Lord.  Obviously, they are connected.  But
    40        what I am talking about is what Style and Hollander and,
    41        indeed, Bingham L.J. in Ventouris v. Mountain, calls
    42        "litigation privilege"; that is to say, not the broad
    43        category of client and solicitor, which is all protected,
    44        but documents generated for the particular purposes of
    45        actual or contemplated litigation.
    46
    47   MR. JUSTICE BELL: Yes.  I merely ask because Mr. Hall said that
    48        he had understood that you were not claiming legal advice
    49        privilege, which was not my understanding.
    50 
    51   MR. RAMPTON:  No, that is not right at all.  I claim both sorts 
    52        of privilege. 
    53
    54   MR. JUSTICE BELL:  Yes.
    55
    56   MR. RAMPTON:  I should have thought it was plain beyond any
    57        reasonable argument that if a document is created by or on
    58        behalf of a client for submission to the solicitors, that
    59        is ordinary legal professional advice privilege.
    60

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