A solicitor acting for a property company, Jackson Way Properties Ltd, which is under investigation by the Flood tribunal, was given leave by the High Court yesterday to challenge decisions of the tribunal regarding solicitor-client privilege.
The challenge by the solicitor, Mr Stephen Miley, of Ashford, Co Wicklow, is expected to delay the tribunal's investigations into alleged planning corruption.
The outcome of the action is being awaited by solicitors representing other persons before the tribunal, said Mr Richard Nesbitt SC, for Mr Miley.
The President of the High Court, Mr Justice Morris, said he was satisfied Mr Miley could make a case based on his complaint that the tribunal had failed to afford him fair procedures in that it did not inform him with sufficient detail of the basis on which it intended to make an order directing him to produce documents relating to his dealings with the company and to identify persons who had given him instructions on its behalf.
Mr Justice Morris noted the tribunal had written to Mr Miley before issuing its order and had told him it was making the inquiries about the company because it believed it had information which, if correct, would lead to the conclusion that there was improper conduct on the part of Jackson Way.
The judge said: "I would have thought this was sufficient information to enable Mr Miley to exercise judgment on whether to disclose the information sought, notwithstanding privilege."
However, in light of a decision in which the High Court ruled that the Tanaiste, Ms Harney, was obliged to give details of the basis of her opinion that it was necessary to appoint an authorised officer to investigate the affairs of two Dunnes Stores companies because her failure to do so had deprived Dunnes of an opportunity to challenge her opinion, Mr Justice Morris said he believed Mr Miley had established an arguable case that, while the tribunal chairman had told Mr Miley of the basis on which he sought the information about Jackson Way, he had failed to give sufficient detail.
He said he would give leave to Mr Miley to take legal proceedings on that ground. He stressed this was just the first hurdle for Mr Miley in making his case.
He also put a stay, pending the outcome of the judicial review, on the Flood tribunal's order directing Mr Miley to swear an affidavit of discovery of documents relating to Jackson Way. The tribunal had directed that the affidavit be sworn by June 29th.
Mr Justice Morris said he would also direct the court registrar to write to the Law Society informing it of the granting of leave to take the proceedings and that it was at liberty to be joined as a party to the action.
In seeking leave, Mr Nesbitt said a very important point was raised by the tribunal's order against Mr Miley. It had attempted to get his client to breach solicitor/client confidentiality.
