Day 255 - 23 May 96 - Page 57


     
     1        However, what I anticipated he was going to go on to say
     2        is, in so far as there were investigations and observations
     3        by inquiry agents whom he does not propose to call, and in
     4        respect of which he has not disclosed documents or
     5        photographs, he has not waived that privilege.  So whether
     6        the information might be relevant or not is neither here
     7        nor there.  You cannot get through the immunity conveyed by
     8        legal professional privilege.
     9
    10        That much I had anticipated Mr. Rampton would argue.  So he
    11        says all information going to Barlows about what, for
    12        instance, Miss Tiller investigated or observed, went there
    13        for the purposes of obtaining advice in proceedings which
    14        were contemplated or, for all I know, had already been
    15        instigated.  It was, therefore, privileged.  It has not
    16        been waived because the Plaintiffs do not propose to call
    17        Miss Tiller and they have not put in any documents about
    18        it, or a photograph about it, and so it is still covered by
    19        a privilege which has not been waived.
    20
    21        So far I had anticipated Mr. Rampton's argument with the
    22        help of what he said, I think, on the afternoon of
    23        21st May.
    24
    25        What this afternoon's discussion has raised is the
    26        possibility that even communications between a client and a
    27        third party which did not go to the solicitors, information
    28        about inquiry agents' investigations and observations which
    29        did not go to the solicitors, and maybe it was never
    30        intended should go to the solicitors, would be covered by
    31        the same privilege.  But that may not matter, because what
    32        Mr. Rampton has indicated -- subject to a final check -- is
    33        that he thinks that all the information about inquiry
    34        agents' investigations and observations by Miss Tiller, for
    35        instance, Miss Hooker and the third unidentified inquiry
    36        agent, are covered by legal professional privilege - the
    37        legal professional privilege which, he argues, bites on
    38        communications between third parties or the clients and the
    39        solicitors for the purpose of obtaining legal advice.
    40
    41        I am not seeking to argue it now, but I am trying to
    42        explain what I understand the argument will be.
    43
    44   MR. MORRIS:  Right.  Can I say that my glimpse of the White Book
    45        said that all documents sent to solicitors are not
    46        automatically covered by privilege.  Obviously, if
    47        documents are sent to the solicitors, for example, Heathrow
    48        employment records, are sent to the solicitors, the only
    49        reason they are sent to the solicitors is that because they
    50        are relevant to an issue in the case, then they are 
    51        disclosable. 
    52 
    53   MR. JUSTICE BELL:  What you have to ask is whether the dominant
    54        purpose is for the purpose of obtaining advice.
    55
    56   MR. MORRIS:  Or for obtaining evidence if it is for -----
    57
    58   MR. JUSTICE BELL:  No, not necessarily, because you can send
    59        documents to the solicitors.  The main purpose in sending
    60        it to the solicitors is so that they can be evidence in the

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