Day 157 - 18 Jul 95 - Page 53


     
     1        used the transcripts for any other purpose whatsoever,
     2        though it is true, having paid for it, they might be
     3        entitled to do so.
     4
     5        Finally, my Lord, the letter says this:
     6
     7             "You would have to signify your understanding
     8             and acceptance of all these conditions in
     9             writing to us."
    10
    11        My Lord, we find it very difficult to see, in fact we find
    12        it impossible to see, how it can sensibly be argued that
    13        that places any fetter on the Defendants whatsoever in the
    14        conduct of the litigation whether to give that undertaking,
    15        albeit that it would impose as much of a fetter as we could
    16        possibly create on their disseminating the material for
    17        ulterior purposes.
    18
    19        As I said a moment ago, the remedy is in the Defendants'
    20        own hands.  If they think it is unfair they do not have the
    21        transcripts, why, then, they just say, "That is fine; we
    22        would like the transcripts to use for the case and we will
    23        not use them for any other purpose."
    24
    25        My Lord, then I pass to discovery.  Again, I will deal with
    26        this only briefly.
    27
    28        The starting point must be Order 24, rule 1 and Order 24,
    29        rule 2(1), which are respectively on pages 431 and 434 of
    30        the White Book, 1(1) and 2(1).  Your Lordship has them well
    31        in mind.
    32
    33   MR. JUSTICE BELL:  Yes, I do.   Let me organise my papers.
    34
    35   MR. RAMPTON:  My Lord, to summarise it, a document is
    36        disclosable if it is relevant to any matter in question
    37        between the parties in the action.  So well known that I do
    38        not have to read the rule out.
    39
    40        The rhetorical question in the context of discovery is what
    41        is or might be the matter in question between the parties
    42        to this action that a transcript of the evidence given in
    43        court might be relevant?  One can answer that this way:
    44        The matter in question to which the transcripts relate, and
    45        only relate, is this:  What did the witnesses say when they
    46        gave evidence in court?
    47
    48        As your Lordship rightly pointed out in argument when the
    49        Defendants were on their feet, it might very well be that
    50        in a subsequent action the question, "what did a witness 
    51        say in court", was very much an issue between the parties. 
    52        Suppose, for example, a newspaper is sued for libel on the 
    53        ground that it has published an unfair or inaccurate report
    54        of the proceedings, or previous proceedings, then the
    55        question is very much what was actually said in court.  In
    56        that case transcripts of the previous proceedings in the
    57        hands of one of the parties, two, or, indeed, both of the
    58        parties to the defamation action against the newspaper
    59        would certainly be disclosable documents.  The case your
    60        Lordship mentioned about the judge's summing was, I think,

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