Day 146 - 03 Jul 95 - Page 31
1 you have numbers at the bottom, is the continuation of
2 paragraph 17 of the Defence and Counterclaim.
3
4 MS. STEEL: I think we had the old Counterclaim.
5
6 MR. ATKINSON: There were various drafts of it.
7
8 MR. JUSTICE BELL: In fact it has 16 written over the 17, but
9 I think that was just a mistyping. That starts at the very
10 bottom of page 10 and there is a paragraph (c) on page 11.
11 That is in relation to "deliberately ignoring", is it?
12
13 MR. ATKINSON: That is right, yes.
14
15 MR. JUSTICE BELL: Is there likely to be any documentation in
16 relation to "deliberately ignoring"?
17
18 MR. ATKINSON: There may be, one cannot say, but if there is we
19 would like to know about it. What we have said, my Lord,
20 we have anticipated in so far as there is anything that may
21 be listable, it may well be privileged, we have said
22 that ----
23
24 MR. JUSTICE BELL: What sort of thing? I am just trying to
25 imagine what kind of documentation you might have about
26 "deliberately ignoring".
27
28 MR. ATKINSON: One might have, for example, discussions with
29 one's legal advisers, if one had any legal advisers, as to
30 whether one responded or one did not; whether one wrote a
31 letter ----
32
33 MR. JUSTICE BELL: But it would have to be a document, would it
34 not?
35
36 MR. ATKINSON: It would have to be some sort of document, yes,
37 but one might have a letter, one might have ----
38
39 MR. JUSTICE BELL: You say that is not for enquiry at this stage
40 because if there is a list verified by affidavit, a very
41 short affidavit, and it does not include any such document,
42 one is entitled to assume that the Defendants are saying:
43 "We have no documents under that head". If they do have
44 documents and they say, "they are privileged in some way",
45 they can list them and claim the privilege.
46
47 MR. ATKINSON: That is exactly right. What I am not doing at
48 this stage is making an application for specific discovery
49 under rule 7. In essence, this is not an extraordinary
50 application.
51
52 MR. JUSTICE BELL: No, that is why I am talking so much and why
53 I asked you to explain, because the Defendants might see
54 more in it than there actually is. What they have not done
55 is provided a list, you say, in relation to these matters
56 which are issues or potential issues in the case and they
57 had better do that.
58
59 MR. ATKINSON: To be fair we have not done it either, but we
60 have every intention of doing it. We have not done it so
