Day 250 - 15 May 96 - Page 17

     
     1   MR. JUSTICE BELL:  Let me find it.  Yes.
     2
     3   MS. STEEL:   The very last sentence which appears in brackets,
     4        just the last part of it, is 'if it was decided that
     5        proceedings should be issued'.  So, clearly at this stage
     6        there had not been a decision that there would be
     7        proceedings.
     8
     9   MR. JUSTICE BELL: This is back in October of '89, not June of
    10        1990, is it not?
    11
    12   MS. STEEL:   Yes, and in paragraph 7 Mr. Nicholson says, "I told
    13        the directors I would leave it to their discretion.  They
    14        should maintain the operation for as long as is necessary
    15        to obtain the information we needed", and it talks about
    16        whether or not, before taking....
    17
    18   MR. JUSTICE BELL:  Anticipated proceedings does not mean to say
    19        you have made a decision to take them.  It means you are
    20        contemplating the possibility of having proceedings.
    21
    22   MS. STEEL:   Well, if I just draw attention to 7A.2(i).  Just
    23        before that it says, "It is important to know the group's
    24        future plans for two reasons.  One, before taking a final
    25        decision to embark on litigation we wanted to be sure there
    26        was a real need for it", and so on.  And then No 3 is 'if
    27        proceedings were to be issued', and that is basically it in
    28        terms of the fact that litigation was not actually
    29        definitely going ahead at that stage.
    30
    31        The other point that I would like to make is that the
    32        paragraph that Mr. Rampton has referred to on page 445 does
    33        refer to documents, and there is nothing in there that says
    34        it applies to what was said, and he has not given any
    35        authority for saying it applies to verbal communication.
    36
    37   MR. JUSTICE BELL:  Well, it does, there is no distinction
    38        between the two.
    39
    40   MS. STEEL:   Well, why does it say 'documents' in that case?
    41
    42   MR. JUSTICE BELL:  Well, I do not think that pretends to be a
    43        complete setting out of the law.
    44
    45   MS. STEEL:  It is in the section of discovery and inspection of
    46        documents.
    47
    48   MR. JUSTICE BELL:  Just take it from me it applies to all
    49        communications, whether they are written or oral.
    50 
    51   MS. STEEL:  The second thing is that it is talking about 
    52        communications between solicitors and non-professional 
    53        servant, agent or third party, not about communications
    54        between the client or one of the parties and a third party,
    55        or two witnesses, or whatever.  The point is it is
    56        communication between a solicitor and one of those people,
    57        or a solicitor or a barrister, presumably.
    58
    59        The third point, in the second paragraph of that part, it
    60        says, "Difficulties arise" -- I do not know whether you see