A lawyer for Baron Hans Heinrich Thyssen-Bornemisza told the Court of Appeal yesterday the defence must show the Baron misrepresented facts in his affidavit to the court, and a court order was misconceived.

Robert Ham, acting for the Baron, said corporate defendants -- Favorita Holdings Limited, Thybo Holdings Limited, and Tornbuoni Limited -- must show a claim by the Baron and LRT Trustee Limited to show privilege is misconceived.

The Baron's lawyers are claiming three categories of documents cannot be disclosed as evidence in an upcoming civil trial because there are communications which are protected by privilege.

Mr. Ham said documents in the 1987 file of the Baron's lawyer Paul Coleridge QC relating to the 1990 art trust, as well as 1993 letters stating how the Baron is to divide his property, are protected by privilege.

He said the court must look at each of the three documents separately. He claimed the documents in the Coleridge file and those of the Sir Timothy Lloyd involvement were not connected.

The lawyer said the only admission the plaintiff is making is that Sir Timothy Lloyd was the Baron's lawyer. Mr. Ham said this does not mean that Sir Timothy was exclusively the legal adviser of the Baron under a retainer.

Mr. Ham told the court the Baron and trustees of LRT Trustees Limited, the plaintiffs in this hearing, are not admitting the contents of a November 1998 letter from Sir Timothy are correct. In any event the letter is not inconsistent with claims by the Baron that both he and his wife received legal advice from Sir Timothy in one retainer. Therefore the communications were not to be disclosed, Mr. Ham added.

Mr. Ham argued the Baroness has an absolute right to the documents ordered to be handed over to the court. He said unless the Baroness waives her right to the documents either expressly or by implication the disputed documents could not be released.

These documents deal with communications between the Baron and Baroness and their lawyers.

In the case of the Coleridge file, thousands of documents have been disclosed and over 390 otherwise, said Mr. Ham.

What concerns the Court of Appeal is a handful of matters of a discreet nature, he continued.

He said the task of producing documents was like looking for a needle in a hay stack, as lawyer Mr. Coleridge acted as both a confidant and a legal adviser to the Baron.

Mr. Ham claimed that it was not just a matter of determining whether there was a joint retainer between Sir Timothy and the couple. Sir Timothy acted in several capacities and was not sure at times in which capacity he acted.

An earlier order of Puisne Judge Richard Ground dealt only with one issue, which was whether the communications between the Baron and his lawyers were privileged. All documents were to be sent to the defendants, he said.

He continued by saying a list produced by the plaintiffs' lawyer complied with an earlier Supreme Court order. Mr. Ham said the order of Mr. Justice Ground did not say anything about where the joint privileged documents should be listed in a schedule to the defendants' lawyers.

The preliminary hearing continues today before the judges of the Court of Appeal -- Sir James Astwood, Sir Alan Higgins and the Rt. Hon. Edward Zacca, JA.

Robert Ham Q.C.

BUSINESS BUC