Day 262 - 13 Jun 96 - Page 62
1 putting it in the alternative because, as I understand it,
2 there is evidence that some of the agents were
3 self-employed and some were employed.
4
5 MR. JUSTICE BELL: Yes.
6
7 MR. HALL: Creating a subtle, but perhaps important, difference
8 if your Lordship takes the view that the documents or any
9 ruling you may make about the documents is divisible.
10
11 In addition to the inquiry agents, you have the Plaintiffs,
12 in the form of Mr. Nicholson; and, in addition to him, you
13 have the solicitors acting on behalf of the Plaintiffs.
14 There are, therefore, four separate groups to consider and
15 the relationship between them.
16
17 Let me say something, first of all, about the Plaintiffs'
18 solicitors. A brief view of any brochure from any firm of
19 solicitors these days will clearly disclose that solicitors
20 are engaged in a wide range of activities on behalf of
21 their clients, not merely the giving of legal advice, nor
22 merely the instigation or defending of litigation. The
23 mere fact that the Plaintiffs' solicitors were involved in
24 any of these discussions concerning the product of the
25 agents is neither here nor there. If they were engaged for
26 the purpose of giving legal advice, or that was the
27 dominant purpose in relation to litigation, then I would
28 have to concede that the general point is already made.
29 But if they were there or may have been there for other
30 reasons -- for example, to advise on tactics, to advise on
31 the most appropriate firm of inquiry agents to engage, or
32 whatever reason they may have engaged -- then of course
33 that is something which may put the Plaintiffs outside, or
34 at least on the margins, of the claim of privilege.
35
36 I would invite your Lordship to consider the authority of
37 Alfred Compton Amusement Machines Ltd. v. Commissioners of
38 Customs and Excise, [1974] A.C., 405.
39
40 MR. JUSTICE BELL: Yes.
41
42 MR. HALL: That was a complex matter involving tax issues. If
43 I may read from just a small part of the headnote on
44 page 406:
45
46 "(2) (Viscount Dilhorne dissenting) that
47 professional privilege did not attach to the
48 memoranda for the first and immediate purpose
49 for which those documents were obtained or came
50 into existence was to assist the commissioners
51 to ascertain the wholesale value of the goods in
52 question in the manner prescribed by the Act."
53
54 It may take a rather more detailed reading of the case to
55 ascertain precisely what the memoranda was about, but,
56 nevertheless, it concerned matters concerning company books
57 and an investigation into a company by the Customs and
58 Excise.
59
60 However, if it makes it clear that where there is a
