Day 262 - 13 Jun 96 - Page 56


     
     1        not waiver privilege in the underlying or background
     2        information from which that affidavit or those witness
     3        statements were compiled; that is to say, links like
     4        solicitors' notes, drafts, and so on.
     5
     6        I fear that I cannot offer your Lordship, because I find it
     7        impossible as a matter of logic to do so, I cannot
     8        reconcile those two apparently competing principles.
     9
    10   MR. JUSTICE BELL:  Is that a practical problem in this case?
    11
    12   MR. RAMPTON:  It is to this extent -- and this is where I see
    13        the problem arising -- it does not arise in any sense at
    14        all in relation to occasions where we have not offered any
    15        evidence.  That is quite obvious.  Where it might arise --
    16        and this, I foresee, is a matter for your Lordship, is the
    17        real kernel of the matter your Lordship has to decide --
    18        where it might arise is in relation to meetings attended by
    19        the witnesses that I have called and will call, where
    20        I have deployed the evidence and where I have disclosed the
    21        relevant parts of the notes, because I can see I have to do
    22        that; not least because their memories are so fallible
    23        after so long a period of time.  But I have to do it anyway
    24        when I call them as witnesses.  The problem might arise
    25        where those meetings, those particular meetings, were also
    26        attended by somebody that I have not called.
    27
    28        It might be argued -- and this is where I see the
    29        difficulty -- that, "Oh, well, you have chosen to deploy
    30        that witness and those notes.  Though you have not called
    31        the other potential witness -- and, certainly, there is
    32        nothing that can be done to make me to call that witness --
    33        you have chosen not to, you have exercised your right not
    34        to call that witness; nevertheless, the notes that that
    35        witness took of that occasion are associated with or
    36        connected to the transaction which you have called a
    37        witness to tell the court about.  That is where I see the
    38        difficulty arising.  I deal with it.
    39
    40   MR. JUSTICE BELL:  What would you argue the position should be?
    41
    42   MR. RAMPTON:  I was going to say, I go on from that to say that,
    43        though in a sense that is an attractive argument, it is, we
    44        believe, somewhat to distort the reality.  For one thing,
    45        it goes further than the authorities actually warrant,
    46        although I can see how it can be fitted into the
    47        authorities.  Second, it cuts right across the whole
    48        principle of what witnesses you choose to call.  Take a
    49        mundane example.  Suppose one had a car accident in the
    50        street, and suppose the solicitor went and interviewed six 
    51        witnesses, and suppose he did that pretty sharply after the 
    52        accident, and he took notes of what they had to say, 
    53        obviously contemplating that he might have to prosecute a
    54        claim in the courts.  When he has thought about it and
    55        discussed it with his client, he decides, having
    56        interviewed six people, he is only going to call three.
    57
    58   MR. JUSTICE BELL:  It would have very far-reaching
    59        ramifications.
    60

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