Day 262 - 13 Jun 96 - Page 54


     
     1        discretion.
     2
     3   MR. RAMPTON:  None at all.
     4
     5   MR. JUSTICE BELL:  The client is entitled to claim privilege,
     6        and no court can make comment on the fact that privilege
     7        has been claimed in order to draw any inference from the
     8        claiming of privilege.
     9
    10   MR. RAMPTON:  None at all.
    11
    12   MR. JUSTICE BELL:  There is clear authority as to that.
    13
    14   MR. RAMPTON:  There is, my Lord.  I had not thought that that
    15        was in the least bit controversial, so I have not brought
    16        any authority on that.  But that I doubt will be argued.
    17        It is perfectly clear as a matter of law.  If it were
    18        otherwise, privilege might not be worth very much.
    19
    20        My Lord, I start with, as I say, a rather trite
    21        observation, that the question of waiver of privilege, or
    22        waiver of privilege can never extend to irrelevant material
    23        for the reason that irrelevant material is never
    24        disclosable in the first place, anyway.
    25
    26        The second question is, if you waive privilege in a
    27        document or by calling a witness to give evidence or
    28        information to the court which would otherwise have been
    29        privileged, how far does that waiver extend?  The answer
    30        is, as far as we can see on the authorities, it extends to
    31        documents connected to or associated with the particular
    32        transaction which is dealt with or described by the
    33        evidence.
    34
    35        The third question then is: in any given case, what is the
    36        transaction?  In the context of this case we believe that
    37        the answers to those two last questions are really quite
    38        easy, and they can be put into summary form.  If an inquiry
    39        agent gives evidence about a particular London Greenpeace
    40        meeting on the basis, largely speaking, though to some
    41        extent from his memory, but, largely speaking, on the basis
    42        of notes that he took at the time, then when he gives
    43        evidence, the client (the Plaintiff in this case) has
    44        waived privilege not only in relation to the evidence
    45        itself which was, until it was given, itself the subject of
    46        privilege, but also in the associated notes, so far as they
    47        were relevant.
    48
    49        That does not mean, however, in our respectful submission,
    50        that by that route one makes any broader waiver, whether in 
    51        relation to other occasions about which that witness does 
    52        not give evidence, or in relation to evidence which might 
    53        have been given by another witness to that occasion who has
    54        not, in fact, been called to give evidence.
    55
    56        The whole reason for that, as one sees when one looks --
    57        I am only going to ask your Lordship to look at two
    58        authorities -- but the whole reason for that is that a
    59        party has an inalienable right to choose what evidence to
    60        adduce at trial.  Until the evidence is adduced -- and it

Prev Next Index