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

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