Day 072 - 12 Jan 95 - Page 04
1 him) said that they were potentially relevant and that was
2 sufficient, and there may well be a distinction. Would it
3 help you, because I looked at the authorities and, subject
4 to any argument, I got two principles from them which might
5 be relevant to this case. I will read out to you what
6 I wrote down about that.
7
8 It seemed to me that the two principles relevant to the
9 argument you put that you should be able to see the whole
10 of the documents are these: Firstly, the test for whether
11 on discovery part of a document can be withheld on the
12 ground of irrelevance -- and it is only irrelevance which
13 is put forward here, it is not suggested they are
14 privileged -- is simply whether that part is irrelevant
15 provided that the irrelevant part can be covered without
16 destroying the sense of the rest and making it misleading,
17 a party is permitted to cover up that part.
18
19 Then, secondly, a party is entitled to seal up or cover up
20 parts of a document which he claims to be irrelevant unless
21 the court can be satisfied or at least reasonably suppose
22 from the documents produced, or anything admitted in the
23 pleadings or in any affidavit concerning discovery or
24 necessarily from the circumstances of the case (including
25 of course the evidence in the case) that the discovering
26 party must be wrong in claiming that the blanked out
27 passages do not relate to any matter in question in the
28 action.
29
30 I really take that as a combination of what Lord Justice
31 Hoffmann said and the paragraph which you have just read
32 from Lord Justice Leggatt's judgment. They expressed it in
33 rather different words. Lord Justice Leggatt you have read
34 out. Lord Justice Hoffman referred to the court being
35 satisfied that the claim of irrelevance was wrong.
36
37 MR. MORRIS: Yes. I am a little bit confused on exactly which
38 words are the most crucial in terms of whether it relates
39 to a matter in question or whether it directly or
40 indirectly enables a party to advance or -----
41
42 MR. JUSTICE BELL: I treat them as meaning the same thing
43 because if it relates to a matter in issue, then it might
44 either directly or indirectly enable either you to advance
45 your own case or damage McDonald's case. I do not see any
46 material difference.
47
48 MR. MORRIS: Right. The fundamental point that we are making
49 (and I will just go into the detail in a minute) is that
50 there is a matter of principle at stake here, and whether
51 or not this particular part of the case and this particular
52 document is the most important document in the case or
53 equivalent to the document that we previously sought is not
54 a main consideration. It is a principle of -- it is not
55 how important a document it is, it is whether it is or not
56 relevant or relating to the matters that we are concerned
57 with in this trial.
58
59 If it can be reasonable to suppose, as Lord Justice Leggatt
60 said, is it reasonable to suppose that the blanked out
