Day 262 - 13 Jun 96 - Page 55


     
     1        can be done by way of Civil Evidence Act statement,
     2        perhaps, once it is submitted by the court certainly,
     3        certainly in an affidavit which is used in proceedings and,
     4        obviously, by putting somebody in the witness box -- but
     5        until any of those events occurs, all the information,
     6        whether in a witness statement, in notes, in drafts, in
     7        solicitors' notes, all that information is the subject of
     8        privilege.  It is only at the time when a party makes the
     9        decision to deploy that evidence in court or in the
    10        proceedings that the privilege is waived.
    11
    12        When that happens, then if there are associated documents
    13        they must be disclosed because, to use Style and
    14        Hollander's words, one is not allowed to cherrypick.  That
    15        is what underlay the decision of the Court of Appeal in the
    16        Great Atlantic Insurance case.  You cannot use part of a
    17        document because it suits you and then say: "Well, you
    18        cannot see the rest, because I do not choose to waive on
    19        that."  If you have a document or, indeed, a series of
    20        documents which flow from or are connected with or
    21        associated with a particular piece of evidence which you
    22        deploy in court, then you have taken the decision to waive
    23        all that material, too.
    24
    25        There is, however, it appears, even then -- and this is why
    26        I am a little bit cautious going even as far as I have -- a
    27        problem which I am not presently, I do not believe, able to
    28        resolve to my own satisfaction, I have to say.  I may have
    29        to leave it to your Lordship.  If one takes an ordinary
    30        case where an affidavit is sworn, for example -- and this
    31        is one of the examples which Hobhouse J. gave in the
    32        General Accident case -- if one takes, for example, an
    33        affidavit which is drafted, first of all, and then sworn,
    34        so far privileged; if it is then deployed in a hearing,
    35        perhaps in chambers, plainly, the privilege which resided
    36        in that affidavit before it was used has been waived.  But
    37        one asks this question, as a practising lawyer -- and
    38        Hobhouse J. asked it too, and it was rhetorical question to
    39        which the answer was plainly no -- does that mean, when you
    40        use the affidavit, that you then have to disclose all the
    41        solicitors' drafts and the notes that he made when he
    42        interviewed the client.
    43
    44        I say it is different, for this reason, that the principle
    45        which underlies, as we understand the authorities, the
    46        waiver of privilege and its extent is that if a party
    47        chooses -- and it really underlies the reference with
    48        discovery -- if a party chooses to deploy a piece of
    49        information in court to his own advantage, it is only fair
    50        that the court and the other side should see the whole of 
    51        the relevant material, so as to see that -- and this is the 
    52        effect of Great Atlantic Insurance, I am sure -- so as to 
    53        see the parties deploying the evidence has not, as it were,
    54        cheated, that the evidence is reliable, so as to be able to
    55        test it.
    56
    57        I find that principle -- which is, quite obviously, a right
    58        principle -- very difficult to reconcile with what is
    59        obviously also a right principle, that when one serves a
    60        witness statement or an affidavit, or whatever, one does

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