Day 262 - 13 Jun 96 - Page 74


     
     1
     2        The wife applied to exclude the solicitor's affidavit and
     3        it was held, dismissing the application:
     4
     5             "... that although the bankrupt and his wife
     6             were joint clients of the solicitor in relation
     7             to the transaction concerning the matrimonial
     8             home, the wife, by revealing what had been said
     9             by the solicitor as to whether the transaction
    10             was a sale or a gift, had chosen to lift the
    11             veil of privilege in part, and fairness required
    12             that it should be lifted in whole".
    13
    14        On page 1265 of the report, the judgment of Mr. Justice
    15        Peter Gibson, paragraph B, the authority of Nea Karteria is
    16        referred to.  From the judgment of Mr. Justice Mustill the
    17        following is cited:
    18
    19             "'Where a party is deploying in court material
    20             which would otherwise be privileged, the
    21             opposite party and the court must have an
    22             opportunity of satisfying themselves that what
    23             the party has chosen to release from privilege
    24             represents the whole of the material relevant to
    25             the issue in question.  To allow an individual
    26             item to be plucked out of context would be to
    27             risk injustice through its real weight or
    28             meaning being misunderstood'".
    29
    30        I put that down as a marker.  There is a further authority
    31        upon disclosure in relation to allowing a full argument at
    32        a later point.  Further down that page, paragraph F,
    33        Mr. Justice Gibson says as follows:
    34
    35             "Mr. Lambie referred me to Lyell v. Kennedy
    36              .... for the proposition that the waiver of
    37             privilege in respect of some documents for which
    38             privilege has been claimed does not prevent a
    39             claim for privilege being maintained in respect
    40             of the remainder.  Of course, that is correct
    41             when the documents are not sufficiently
    42             connected."
    43
    44        My submission is this.  In order to determine whether or
    45        not the Plaintiffs' claim to privilege in relation to the
    46        documents that they have not disclosed is a valid claim,
    47        your Lordship has to consider whether or not those other
    48        documents are sufficiently connected.  There is,
    49        unfortunately, no further guidance that I can find in that
    50        report upon how a court should determine whether or not a 
    51        document is sufficiently connected.  But, in the context of 
    52        this case, it would be appropriate, in my submission, to 
    53        hold that the documents, shall we say the notes made by the
    54        seven agents formed a body of information from which the
    55        Plaintiffs, perhaps through their solicitors, have picked
    56        the parts which, perhaps, most assist themselves to draft
    57        reports and, later, statements to be used in evidence.
    58
    59   MR. JUSTICE BELL:  What is the distinction, then, between notes
    60        or reports and witness statements?  If I can go back to my

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