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HIS HONOUR: Yes. Well, I’m sorry, but if somebody wants to make application in respect of confidentiality of a document of which unopposed entry has been given to the events, then they should do it right this moment. 252 But what matters is the existence of the assorted contradictory explanations given (or suggestions floated) by Ms Higgins as to why some material was preserved and a few was missing. But even so, to make doubly positive, as Annexure E signifies, given Ms Higgins herself has now raised a point about procedural unfairness, however: (a) the background set out above; (b) the other issues in Annexure E; and (c) the appearance of her representatives on 7 December 2023 when the settlement between the parties was announced, I allowed Ms Higgins the opportunity of constructing an software to hunt to defer judgment to permit her to be recalled to provide evidence if she so wished. Or, even stranger still, why, as detailed beneath, would she toy with a conspiracy idea that her knowledge was wiped remotely? Moreover, why would she not be careful to save lots of the data concerning the unique version and metadata of a photograph she (and Mr Sharaz) later considered in 2021 a very powerful corroborative material supporting her account of what occurred?
238 It’s adequate to search out that by her personal harm solicitors, and more likely than not on directions, Ms Higgins was in 2022 advancing a declare for compensation based mostly on allegations materially the identical as these she had articulated to Ms Maiden and to the Project crew, the core features of which she had persistently maintained since a minimum of January 2021. More particularly, representations, materially an identical to central representations made in the Commonwealth Deed, had been made for nearly two years and have been now getting used to floor the Statutory Causes of Action articulated by her solicitors. 251 The reference on this extract to the illustration made to Mr Sharaz through WhatsApp on 21 May 2021 requires some context. Indeed, as we will see, originally of her first meeting with the Project team, this photograph is raised particularly by Mr Sharaz and Ms Higgins as being the one proof that elevated Ms Higgins’ account from merely being one individual’s phrase in opposition to another.
Ms Higgins in relation to the document or not? Commonwealth Deed, she signed, sealed, and delivered the document on that day in entrance of her present solicitor, Mr Zwier. In any event, there is no reason why the doc cannot be tendered, so a document – except there’s any objection? Some knowledge would possibly conceivably have gone lacking when changing phones, nevertheless it was by no means made clear to me why such an event (or occasions) would cause her iCloud data to disappear like a will-o’-the-wisp? 249 Moreover, the missing data went beyond textual content messages, however included photos taken on the evening in question, which may have proven interactions between Ms Higgins and Mr Lehrmann. 241 I haven’t included in these examples issues the place the (not less than underlying) falsifying proposition was not put to Ms Higgins. We engaged in some preliminary discussions as to whether or not it might be able to be tendered and then merely made submissions on a number of the issues, including some new matters without a Browne v Dunn level being taken. MR WHYBROW: — in the circumstances where, effectively, the gist of all of these issues were put – – HIS HONOUR: Yes.
Its forensic importance is manifest and whereas she was beneath an obligation to inform the reality, it was put forward by her as corroborative materials. Pelosi to put Rep. I’ve now had to accept that it could not have necessarily come from the assault itself. HIS HONOUR: So I congratulate the events on wise method to that as a result of I did wish to spare her the necessity to come back. HIS HONOUR: All proper. HIS HONOUR: And in addition search whatever confidentiality orders that it could be thought acceptable to hunt, even if it was tendered. Godard even quotes himself: “Showing a forest, straightforward. But exhibiting a room with a forest close by, troublesome” is paraphrased from Godard’s 1958 overview of Alexandre Astruc’s movie Une Vie. 231 Following overview of the evidence and the receipt of submissions, it grew to become evident to me the potential significance of the representations made in the Commonwealth Deed by Ms Higgins, and Annexure E details the steps I have taken to guard against any residual issue as to procedural fairness together with, within the circumstances set out above, allowing for Ms Higgins to make any submission she wished to make concerning the submissions superior by Mr Lehrmann. HIS HONOUR: Well, I have to say my preliminary view was that it would not have been appropriate to have Ms Higgins recalled if there was some sort of sensible decision.