When the content of these telegrams is contrasted with the four telegrams now in issue, I think that it can be respectably argued that the telegrams listed above were relevant and the four telegrams in issue were not, even on a liberal interpretation of the Motion. for discovery. If the Hong Kong Government were able to accept this view of relevance, it would, of course, mean that no further action. was necessary.
On the other hand, the Hong Kong Government may still take the view that if the four telegrams had been found at the relevant time they would have been listed in the schedule to Sir Piers Jacob's certificate. Even if this is so, I believe it is common ground that there is at the present time no legal duty whatsoever to disclose the existence of these documents. As the draft letter to Eversheds says, the documents listed in the certificate were held by the court to be immaterial to the proceedings in UK4 and in any event were subject to public interest immunity. Mr Osman has therefore suffered no prejudice from their omission.
The PII certificates were prepared for the purpose of proceedings which have now been concluded. Both the UK and the Hong Kong Government compiled in good faith a list of the documents judged to be relevant and (so far as we were aware) in our possession. We in the UK judged the four telegrams in issue to be irrelevant. On the other hand, we considered relevant and we listed in our certificate a large number of documents (approximately 40) which were not listed in the Hong Kong certificate, presumably because they were judged to be irrelevant in Hong Kong or because they were not found on Hong Kong files. It must already be clear to Mr Osman's solicitors that a large number of documents which originated from Hong Kong, or were sent or copied to Hong Kong are listed on the UK certificate but not on the Hong Kong certificate. It must therefore have been clear to Mr Osman's solicitors as soon as they saw the two PII certificates that there was some difference in judgement between the UK and Hong Kong when considering the relevance of particular documents. It could be argued that any exercise in setting the record straight should logically encompass not only the four documents recently discovered in Hong Kong but also the forty or so documents listed in the Schedule to the UK certificate but not in the Schedule to the Hong Kong certificate. The telegrams in question have the following numbers in the Schedule to the UK certificate:
the UK certificate: 1-11, 14, 15, 17-29, 31, 32, 34-37, 54, 56-60, 62-69.
It is our view that no such exercise is required by virtue of any legal duty nor is there any other reason of propriety or fairness which requires the disclosure of the existence of further documents. We appreciate the great sensitivity of the Osman case and the need to avoid any possible suggestion that the Hong Kong authorities have been other than scrupulously fair in the conduct of it. At first sight, the fact that documents have been found which might or would have been discoverable had the courts decided the case differently, might seem to raise an issue of propriety. However, having considered this matter very carefully indeed, the present situation does not seem to us to raise any such issue of propriety. Mr Osman's solicitors would surely be somewhat bewildered to receive the letter which it is proposed to send them and it is bound to
TPIABA
No comments yet.
Private notes are available after approval.