its right to store concrete products at an exhausted quarry in Smith's.

But Bierman's lawyer Mr. Mark Ray is hoping talks with the Attorney General's Chambers will make a trip to London unnecessary.

In granting leave to appeal, the Court of Appeal conceded yesterday that it might have missed a piece of evidence in arriving at a judgment it delivered in December.

That ruling gave Bierman's the right to continue doing business at its Rocky Heights industrial site in Smith's Parish. But the court said Bierman's had not established "use rights'' for the adjacent quarry.

Mr. Ray submitted that the Court of Appeal had overlooked an affidavit which said Bierman's had been using the quarry as long ago as 1958.

The quarry issue had not been the central one in the appeal.

"There was a great deal of evidence,'' Appeals Court Judge the Hon. Mr.

Justice Huggins said yesterday. "It may well be that we missed it.'' While he was not conceding that the court had erred, "if we were wrong, we were wrong, and I take advantage of the opportunity to apologise conditionally''.

The quarry is worked out, but Bierman's uses it to store material used at the industrial site.

Mr. Khamisi Tokunbo, representing the Crown, told the court he neither opposed nor supported Bierman's application for leave to appeal to the Privy Council.

"If your lordships are minded to grant leave, then we will take instructions on whether or not to cross appeal,'' he said.

Mr. Justice Huggins said either the court was wrong or it was right. "If that evidence was there, we ought to have seen it, and we were wrong to have not seen it.'' While the court had to allow the appeal, it did not seem right for "a simple matter like this'' to go to the Privy Council.

"The taxpayer's money can be put to better use,'' the Hon. Mr. Justice da Costa said. If the evidence was introduced, the Lords of the Privy Council would take "a dim view'' of the matter.

"I hope it can be dealt with amicably.'' Mr. Justice Huggins said. Mr. Ray said the matter was of "considerable importance,'' because the storage space was needed to operate, and "there is a decision by the Department of Planning that we should be stopping that practice.'' Outside court, Mr. Ray said he took the judges' comments as a signal to the AG's Chambers to settle the matter.

Bierman's battle began in 1988 when the company applied to the Development Applications Board to build on the site. The Planning Department challenged Bierman's to prove it had use rights to the industrial site and quarry.