A solicitor acting for Jackson Way Properties Ltd, which is under investigation by the Flood tribunal regarding the rezoning of lands at Carrickmines, Co Dublin, was given leave by the High Court yesterday to seek an order quashing a decision compelling him to hand over documents.
Mr Justice Kelly granted Mr Stephen Miley leave to seek the order on the second day of his proceedings against the tribunal.
The tribunal wants documents from Mr Miley, of Devil's Glen, Ashford, Co Wicklow, to establish the identities of those people who gave Mr Miley instructions on behalf of JWP. He is challenging its entitlement to those documents in the judicial review proceedings.
In an affidavit, Ms Marie Ann Howard, solicitor for the tribunal, has said JWP had acquired lands at Carrickmines in 1993 formerly owned by Paisley Park Investments Ltd, an Isle of Man incorporated company whose registered shareholders were also corporate bodies registered in the Isle of Man, Panama and the British Virgin Islands.
She said Mr Miley had represented JWP in connection with the Carrickmines lands and in particular in relation to the rezoning of part of those lands in 1995. The tribunal had received information that the persons beneficially interested in JWP were also beneficially interested in Paisley Investments.
It also received information suggesting monies were paid by or on behalf of JWP and/or Paisley Investments to certain politicians in an effort to secure rezoning of the lands. Part of those lands were rezoned in the Dun Laoghaire Rathdown County Development Plan 1998.
The tribunal chairman was investigating this information and did not believe it was appropriate at this stage to reveal details of the information, or its source. The chairman believed it was likely Mr Miley would have documents relating to JWP and, more particularly, about the beneficial owners of that company.
Ms Howard outlined the tribunal's efforts to get that information. She said Mr Miley had declined requests to waive any confidentiality arising from the solicitor-client relationship.
The tribunal believed solicitor-client privilege did not preclude the provision of the information sought. Mr Miley was subpoenaed to appear before the tribunal and directed to bring any documents he had relating to the company.
The chairman had delivered a detailed ruling on June 7th rejecting the contention that, by virtue of solicitor-client privilege, Mr Miley was entitled not to reveal the identity of those instructing him on behalf of JWP.
Mr Miley's argument that the chairman had not sufficiently laid the foundation for the order directing Mr Miley to discover documents was misplaced, Ms Howard added. She said the chairman had explained fully why it was investigating the affairs of JWP and the relevance to those inquiries of documents which Mr Miley might have possession of.
Ruling yesterday on Mr Miley's application to amend the proceedings, Mr Justice Kelly commented that the "procedural and jurisdictional tangle" which the case had found itself in was "a good illustration that the shortest way home isn't the quickest".
This had led to a situation where he gave leave on Thursday to Mr Miley to amend the proceedings so as to try to address the real issues between the parties, solicitor-client privilege and whether the tribunal had acted in accordance with fair procedures.
The judge permitted the amendment to allow Mr Miley seek an order quashing the tribunal's decision of June 7th directing him to make discovery of documents relating to JWP.
Mr Miley has leave to argue that the tribunal was wrong in law in holding that, as a matter of necessity, the identity of the person(s) from which Mr Miley received instructions concerning JWP could not be the subject of solicitor-client privilege.
Mr Miley was also permitted to argue that, before making its June 7th order, the tribunal, in excess of jurisdiction and in breach of constitutional justice and fairness of procedures, had failed to give Mr Miley any basis to sustain the making of an order unravelling solicitor-client privilege.
The judge refused leave to Mr Miley to argue that the tribunal chairman had made the June 7th order in circumstances where the chairman had not exhausted other possible avenues for obtaining the information on JWP.
The case resumes on Tuesday.