A solicitor acting for Jackson Way Properties Ltd has been ordered by the High Court to disclose the identity of those persons who instructed him on behalf of the company. The firm is under investigation by the Flood tribunal over the rezoning of its lands at Carrickmines, south Dublin.
The tribunal is investigating allegations that monies were paid to politicians to secure the rezoning of the lands.
In a decision of major significance for the work of tribunals, Mr Justice Kelly ruled yesterday that, as a matter of Irish law, solicitor Stephen Miley is not entitled to maintain a claim of legal professional privilege (LPP) over the identity of persons who provided him with instructions on behalf of JWP.
The tribunal was entitled to require Mr Miley to disclose the names of those who had instructed him and he must now furnish that information to the tribunal chairman, the judge held.
Any claim of privilege over the identity of persons providing instructions would be inconsistent with the views of the Supreme Court in a previous case and, even in England, which has a wider form of legal privilege than here, the position would be no different, he found.
There was also a strong body of legal authority in other jurisdictions, where the law of privilege was not the same as here, reaffirming the general principle that a solicitor is not entitled to maintain a claim of privilege regarding the identity of their client.
Mr Justice Kelly was delivering his reserved judgment rejecting a challenge by Mr Miley, of Miley and Miley Solicitors, Molesworth Street, Dublin, who has acted as solicitor for JWP since 1994, to the tribunal's decision directing him to produce documents in order to identify those instructing him on behalf of JWP.
The tribunal is investigating information suggesting monies were paid by or on behalf of JWP and/or Paisley Park Investments Ltd - a company which formerly held the title to lands at Carrickmines now owned by JWP but which was liquidated in 1994 - to certain politicians in an effort to secure the rezoning of the lands. Part of the JWP lands were rezoned in the Dun Laoghaire-Rathdown County Development Plan 1998.
The tribunal chairman has said he has reason to believe a person or persons with a beneficial interest in PPI may also have a beneficial interest in JWP. The tribunal had been told monies were paid to politicians to secure the rezoning of the lands at Carrickmines and, in order to inquire into such allegations, the tribunal needed to know the identities of persons who were conducting the business of and/or were the beneficial owners of JWP.
Although JWP was an English-registered company, the tribunal believed the beneficial owners were Irish. These appeared to have gone to elaborate lengths to disguise their identities.
In May 2000, Mr Miley declined to tell the tribunal the identities of those who instructed him on behalf of JWP. He asserted solicitor/client privilege. On June 7th, 2000, the tribunal ruled that LPP did not cover the identity of the persons providing instructions to Mr Miley. He challenged that ruling in judicial review proceedings.
In his judgment yesterday, Mr Justice Kelly said the real issue was whether the tribunal was correct in rejecting the claim of privilege related to the identities of persons who instructed Mr Miley on behalf of JWP.
Mr Miley had argued he should not have been directed to reveal the information unless he was fully apprised of the information in the possession of the tribunal which led it to issue a witness summons against him. He further argued that, if the procedures followed were correct, the information sought by the tribunal was, as a matter of law, the subject of LPP and Mr Miley could not be forced to disclose the identities of those who instructed him.
Mr Justice Kelly rejected both arguments. Correspondence between the tribunal and Mr Miley made clear that, prior to giving evidence before the tribunal, Mr Miley had been made aware of the information which the tribunal had which had triggered the witness summons. Before entering the witness-box, he knew precisely why the tribunal wished to elicit the information sought from him. The judge rejected Mr Miley's assertion that he was entitled to more information, including the facts known to the tribunal and underlying its investigation. If the tribunal was obliged to disclose the information sought by Mr Miley, its investigative function would be compromised, perhaps fatally, he said. Mr Miley was not legally entitled to be given any more information than he had already received from the tribunal. Fair procedures were followed re guarding the witness summons and the posing of questions to Mr Miley regarding those who gave him instructions. The judge rejected Mr Miley's claim he was entitled to greater rights because he was a solicitor.
On the issue of LPP, he said it was more than a mere rule of evidence. It was a fundamental condition on which the whole administration of justice rested and was protected by the European Convention on Human Rights. But, having considered the legal authorities put before him, he concluded Mr Miley was not entitled as a matter of Irish law to claim privilege over the identity of persons who instructed him on behalf of JWP.
He adjourned the matter for a week to allow the parties to consider the judgment.
