TNAG-1101-FCO40-1351-Legislation-on-homosexuality-in-Hong-Kong-including--Report--1981 — Page 508

For present purposes, I think that we might accept the view expressed by the solicitors for Mr Blaker and his Counsel that the documents with

which we are now concerned are relevant. However, I have little doubt that 'Private Eye' do not believe that they will gain any substantial advantage from them in the proceedings. Articles about the Special Investigation Unit in Hong Kong and the inquest on Inspector MacLennan are still being published in that magazine, and I would not be surprised if, notwithstanding the rule that documents disclosed on discovery can only be used for the purposes of the proceedings, the Defendants would regard the production of these particular documents as the outcome of a successful fishing expedition'.

Turning now to whether or not the Plaintiff is obliged to produce the documents, I think that this depends upon the answers to two questions. First, is Mr Blaker in a position to disclose the documents? It Беств from the recent cases on the subject that the over-riding consideration in regard to discovery is that Order 24 is concerned with the physical possession or custody of documents or the power to obtain such possession or custody. A party may only be ordered to give discovery of documents if he has the right to control them personally or in the capacity in which he is sued. (BvB (1978) 3 WLR 624). As I have said, Mr Blaker does not have physical possession of any of the documents which came before him in his capacity as Minister of State at the Foreign and Commonwealth Office and which were copied to Henry Steel.

A second issue is whether such documents as relate to matters in question in the suit have been, but were not at the date of service of the Plaintiff's List of Documents, in his possession.

I have now been able to speak to John Macgregor. and I doubt very much whether the (then) Minister of State had possession or custody of, or power over, any of the documents which came before him' in connection with MacLennan's inquest. As you will have noticed, several of those enclosed with Macgregor's letter were not addressed to Mr Blaker, and he signed none of them. Moreover, Macgregor told me that no Private Office file was kept in relation to this matter and that Mr Blaker did not himself send any minute or memorandum to the Secretary of State which could relate to any question in issue in these proceedings. I understand that

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