Day 165 - 27 Sep 95 - Page 20
1 entire obligation of proving distribution of the fact sheet
2 fail to do so, the case is lost for the Plaintiffs. What
3 is on the table now is an application for the blanked out
4 sections of the notes of the enquiry agent. That is what
5 the application is about, that is what the only issue is,
6 whether the Plaintiffs have the right to withhold sections
7 of notes about meetings which are relevant, the meetings
8 are obviously relevant. The Plaintiffs want to have the
9 right to pick and choose which bits of the meetings or
10 which notes taken should be disclosed about the meetings.
11
12 Obviously, if somebody wrote a note on a piece of paper
13 saying: "Oh, I just remembered it is my auntie's birthday",
14 or something, then there may be an argument about that that
15 might have a little bit more weight. I do not think there
16 is any weight to the Plaintiffs' argument.
17
18 I think the practice about blanking out of documents is
19 becoming an extremely worrying development, from my limited
20 understanding of the legal system. I think it is going to
21 be continued to be pushed as far as it could possibly go by
22 parties in litigation for their own personal benefit. I do
23 not think there is any motivation whatsoever on behalf of
24 the parties in litigation about the general public good,
25 and all that kind of stuff, when they are attempting to
26 conceal matters because, as Mr. Rampton said in this case:
27 "The blanked out bits may allow us to advance our case or
28 damage the Plaintiffs' case"; they cannot, therefore, be
29 irrelevant.
30
31 I think there must be some kind of sensible limitation.
32 I understand the Court of Appeal has ruled that the
33 Plaintiffs do have a power to blank out sections of certain
34 documents. I do not think that power could possibly extend
35 to notes taken by enquiry agents of meetings that are
36 relevant, just exactly as Ms. Steel said about policeman's
37 notes; no doubt, if this practice spreads we will find
38 policeman blanking out sections of their notes. The
39 purpose of having discovery of notes is precisely because
40 you do not know what is in the notes. It is important that
41 the notes be made available so that you can see if the note
42 taken was accurate and comprehensive or were they selective
43 or whatever.
44
45 I do not think the Court of Appeal intended that the power
46 to blank out parts of documents should an unfettered one.
47 There should be strenuous enquiry into exactly what is
48 being done and why it is being done. I think unless the
49 court is 100 per cent satisfied it is in the interests of
50 justice that this be allowed to happen in this particular
51 case, then it should not be allowed.
52
53 We do not have any argument about oppressiveness because
54 the document is available; the work done by the Plaintiffs
55 was extra work in blanking a part out. The parts are
56 obviously relevant because they have already admitted that
57 they may allow us to advance or damage the case.
58
59 There is a question here about the Plaintiffs' attempts to
60 cast this net as wide as possible -----
