Day 262 - 13 Jun 96 - Page 66


     
     1
     2        The authority of Re Highgate Traders Ltd. is, to some
     3        extent, relevant on this point.
     4
     5   MR. JUSTICE BELL: Is that 1980?
     6
     7   MR. HALL:  Yes.  It is reported [1984] BCLC, 151.  I will not
     8        trouble your Lordship at this point with a detailed reading
     9        from the headnote, but the first point in the appeal
    10        appears to be concerning dominant purpose; and it is said
    11        in the first part of the headnote that documents brought
    12        into being -----
    13
    14   MR. JUSTICE BELL:  It is helpful just to see what kind of
    15        documents one is considering and who they were made to.
    16
    17   MR. HALL:  Yes.  The principal document is a report on a fire.
    18
    19   MR. JUSTICE BELL:  Yes -- by loss adjusters.
    20
    21   MR. HALL:  There were other matters concerned with the
    22        liquidation of the company, but they go to another point of
    23        appeal in that case.
    24
    25   MR. JUSTICE BELL:  Yes.
    26
    27   MR. HALL:  In relation to the report on the fire, the Court of
    28        Appeal held:
    29
    30             "Documents brought into being with the dominant
    31             purpose of obtaining legal advice as to whether
    32             a legal claim should be made or resisted and
    33             which would lead to a decision whether or not to
    34             litigate were protected by legal professional
    35             privilege and it was not necessary that the
    36             documents be brought into existence for the
    37             dominant purpose of actually being used in
    38             evidence...."
    39
    40        -- and so on.  That is of course, perhaps, implicit in
    41        relation to other authorities.  But to advance the point
    42        that I am inviting your Lordship to consider, I would ask
    43        you to look at page 173 of that report.  Perhaps I should
    44        begin at the bottom of page 172, where there is a
    45        discussion of the Waugh case, five lines up from the
    46        bottom:
    47
    48             "...if litigation is reasonably in prospect,
    49             documents bought into being for the purpose of
    50             enabling the solicitors to advise whether a 
    51             claim shall be made or resisted are protected by 
    52             privilege, subject only to the caveat that that 
    53             is the dominant purpose for there having been
    54             brought into being."
    55
    56        Then, over the page, page 173, there is a passage from
    57        judgment of Lord Edmund-Davies in the Waugh case cited:
    58
    59             "Having considered the decisions, the writings
    60             and the various aspects of the public interest

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