Day 255 - 23 May 96 - Page 54


     
     1   MR. JUSTICE BELL:  I have.  They are headed "Lists of
     2        Authorities on Waiver of Privilege"; are they actually on
     3        waiver or are they on -----
     4
     5   MR. RAMPTON:  No, those authorities are all on waiver.  The
     6        textbook at the bottom, which is probably the best modern
     7        textbook on discovery, contains both the principle about
     8        what is privileged and also the principle about what
     9        constitutes waiver.  I can tell your Lordship, perhaps,
    10        what is the relevant part.  There is a whole chapter on
    11        legal professional privilege, which is chapter 7.
    12
    13   MR. JUSTICE BELL:  There are obviously bits in the main
    14        textbooks like Cross on Evidence.  I have not looked in
    15        Phipson.
    16
    17   MR. RAMPTON:  There are.  To be quite honest, neither the White
    18        Book, which is dealing only with documents and is,
    19        therefore, as is to be expected since it is dealing with
    20        discovery which is only a limited aspect of legal
    21        professional privilege, nor any of the main textbooks like
    22        Phipson, for example, is half as thoughtful or, indeed,
    23        detailed as the account to be found in Style and Hollander,
    24        which is a modern textbook even now in its Fifth Edition.
    25        This is the 1995 Edition.  The chapter is on legal
    26        professional privilege, chapter 7.  If I say that the whole
    27        chapter bears reading, well, I mean it; it does.
    28
    29   MS. STEEL:   What is the name of the book?
    30
    31   MR. RAMPTON:  It is called Style, S-T-Y-L-E.  Christopher
    32        Style.  It is written on the list.
    33
    34   MS. STEEL:   We have not been given a list.
    35
    36   MR. MORRIS:  Or any authorities.
    37
    38   MR. RAMPTON:  So sorry.  There you are. (Handed).  It is the
    39        last name on the list.  The chapter on legal professional
    40        privilege is chapter 7, which starts at page 161.  For
    41        present purposes there is a useful section 7.3, Litigation
    42        Privilege; that is to say, privilege which arises when
    43        litigation is contemplated or in existence.  That starts on
    44        page 174.  That deals very clearly with communications
    45        between the client and a third party in which the solicitor
    46        is not, at that stage, involved and may never be involved,
    47        provided the litigation is pending or contemplated.
    48
    49        Then, my Lord, the part on waiver is the whole of chapter 8
    50        starting on page 213 and, in particular, for the purposes 
    51        of this part of this case, there is an illuminating section 
    52        8.8 on page 224 headed "Waiver of Collateral or Associated 
    53        Documents".  It is when I looked at that and the
    54        authorities which it cites that I realised how little
    55        I knew about the topic.  Phipson, Mr. Atkinson is just
    56        saying, is actually not very good on this topic; we do not
    57        think, anyway.
    58
    59   MR. JUSTICE BELL:  The only thing I would like to ask is, I can
    60        see that the platform to an argument might be to suggest

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