Because the appellant-plaintiff concentrated on the broader test the attention of the learned chamber judge was not directed to relevant factors with respect to the application of the narrower test to the facts of this case. At the outset of the hearing of the appeal, counsel for the appellant contended for the broader test, and it was only after the Court indicated a preference for the narrower test that the argument properly focussed on matters relevant thereto.

I agree with Davies JA that the pleading in paragraph 5(b) of the defence was inadequate. The broad reference therein to "reasonable cause" was deficient in particularity. The facts constituting the reasonable cause should have been pleaded either initially or furnished by way of particulars. Details of the relevant particulars were extracted from the defendants by means of interrogatories. Once the answers to interrogatories referred to the legal advice relied on by the defendants as founding the "reasonable cause" pleaded in paragraph 5(b) of the defence, the plaintiff became entitled to rely on those answers as remedying the deficiency in the pleading. Thereafter the defendants were confined to those particulars in their endeavour at trial to establish reasonable cause. So far as disclosure of documents is concerned the position is now the same as if the defence had properly particularised the matters allegedly constituting "reasonable cause" by therein referring to the legal advice particularised in the answers to interrogatories.

In those circumstances it matters not that the defendants were obliged to answer the interrogatories. Davies JA has expanded on the reasoning supporting that conclusion.

For the above reasons I am satisfied that the defendants have made forensic use of the advice which otherwise might be privileged from disclosure. Leading counsel for the defendants submitted that no such use had yet been made of the material in question; he submitted that it was still an open question whether the defendants would make use of that at the trial. As I have said, the answers to interrogatories provide the necessary particulars of the allegations in paragraph 5(b) of the defence, and in consequence forensic use has been made of the material.

The appeal should be allowed and the orders made in accordance with the minutes attached to the reasons of Davies J.A. except as to costs.

Because the appellant has contended for a much broader test than the law justifies and because that approach significantly diverted the chamber judge's attention from critical matters, I would not allow the appellant his full costs of the appeal. In the circumstances justice would be done by allowing the appellant to recover costs before the chamber judge and 50% of the taxed costs of the appeal.