Day 262 - 13 Jun 96 - Page 41
1 severable piece of information; so that if it had been
2 contained in a separate document, it would not have been
3 disclosable.
4
5 My Lord, I am quite attempted to illustrate what I am
6 talking about by showing your Lordship one, or perhaps two,
7 of the parts of the notes which have been blanked out.
8 I do not really like to take that course, because it may be
9 thought that I am again -- the Defendants will certainly
10 think it -- being selective.
11
12 MR. MORRIS: We could always suggest something at random. It
13 would more of a realistic check.
14
15 MR. JUSTICE BELL: If one is talking about blanked out pieces,
16 if you state that that is the basis upon which you have
17 done it, I would suggest it is for the Defendants to
18 suggest what there might be which has not been disclosed
19 either in the notes of other occasions or in parts blanked
20 out. You mention Great Atlantic, but the case I have
21 followed so far in relation to parts blanked out has been
22 the GE Capital case.
23
24 MR. RAMPTON: That is absolutely right. GE Capital is the
25 starting point, because, whatever the status of privileged
26 material, the only information, whether it is privileged or
27 not, which is disclosable according to Peruvian Guano, is
28 material which is relevant; and that must always be the
29 starting point; it must be relevance, which is why I have
30 started with relevance.
31
32 It is absolutely no good -- and I mean no good, because my
33 principal concern with relevance is the use of court time;
34 one sees what happens, and I make no bones about this.
35 I do not really blame the Defendants, because they are not
36 trained lawyers, but you give them material which is
37 marginally relevant, and they spend hours poring over it in
38 court with witnesses.
39
40 I have not blanked out -- well, Mr. Atkinson and I, because
41 it was a joint exercise -- Mr. Atkinson and I have not
42 blanked out anything which is even marginally relevant, so
43 far as we can see, applying the criteria which I have just
44 proposed to your Lordship, as we see, what the relevant
45 issues are. Nor have we not disclosed any notes about
46 occasions which the Defendants do not know about for any
47 reason other -- apart from privilege -- than that there was
48 nothing of any relevance on those occasions; neither the
49 presence of the Defendants nor any mention of McDonald's.
50
51 There is one additional feature in relation to relevance, a
52 specific feature, which I believe I ought to outline now.
53 We did not make, and never have made, any allegation that
54 the leaflet complained of was published after the date of
55 the issue of the writ, save for two particular exceptions.
56 One is, I think, 30th June 1994, about which Mr. Howes has
57 recently given evidence; and the other -- whose date I have
58 forgotten, which was more recent than that, it is in
59 1996 -- was the putting on to the Internet by the
60 Defendants, or at their behest, of the whole of the words
