A solicitor acting for Jackson Way Properties Ltd (JWP), which is under investigation by the Flood tribunal in relation to the rezoning of lands owned by the company at Carrickmines, Dublin, has argued before the High Court that he is not required, by virtue of solicitor/ client privilege, to reveal the names of those who instructed him on behalf of the company.
The tribunal chairman ruled that the identity of those instructing Mr Stephen Miley on behalf of JWP cannot be subject to privilege and/or solicitor/client confidentiality. Mr Miley, Glanmore House, Devil's Glen, Ashford, Co Wicklow, is seeking a High Court declaration that this determination by Mr Justice Flood is void, ultra vires, bad in law and in breach of the Constitution and the European Convention on Human Rights. The Law Society has been joined to the proceedings as a notice party.
The action, which opened before Mr Justice Kelly yesterday and continues today, centres on whether solicitor/client privilege and the duty of confidentiality may extend to those who instruct a solicitor on behalf of a client.
Mr Richard Nesbitt SC, Mr Hugh O'Neill SC, and Mr Martin Hayden, for Mr Miley, said the matter concerned all solicitors, which was why Mr Miley had suggested to the President of the High Court that the Law Society should be joined as a notice party. The Law Society had taken a contrary view to the tribunal.
Mr Eoghan Fitzsimons SC, for the Law Society, said it was in court to make submissions on the question of legal professional privilege only. It neither supported nor opposed the positions taken by either side and was not a party to the action. It would be making submissions on solicitor/client privilege and client confidentiality which were issues of the highest public importance.
In an affidavit, Mr Miley said he was retained as solicitor for JWP about October 1994. He provided legal advice and acted for the company in litigation. It was a term of his retainer that he would keep the company's affairs, in respect of which he had given advice, confidential.
On May 9th he received a letter from tribunal solicitor Ms Marie Ann Howard, asking for the names of all persons who had instructed him on behalf of JWP. He sought the basis upon which the tribunal was entitled to seek that information and had pointed out the duty of confidentiality which he had with his clients. In a letter of May 23rd, it was said the tribunal had "received information which suggests that monies were paid by or on behalf of Jackson Way Properties Limited and/or its predecessors in an effort to secure the rezoning of lands now owned by your client at Carrickmines".
The tribunal chairman's view was that any solicitor/client privilege which might exist did not preclude him from furnishing the information. It was further stated that if the information sought was protected by the solicitor/client relationship, then his clients should waive the right to confidentiality.
Before he could reply to that letter he received, on the same day, a subpoena to attend the tribunal with all documents and records which had possessed relating to JWP. On May 24th he wrote to the tribunal stating he was anxious to co-operate with it, consistent with his duties as a solicitor. He said clients had neither waived solicitor/client privilege or confidentiality. He had sought more details about the assertion that monies were paid by or on behalf of JWP or its predecessors to try and have lands rezoned at Carrickmines.
On May 25th another letter from the tribunal stated it had learned that Paisley Park Investments Limited was JWP's predecessor in title, incorporated in the Isle of Man in 1987, and that the original holders of the share capital of PPI were three named companies. It was stated PPI had appointed a liquidator in March 1992 and, following the date of liquidation, JWP was registered as owner of the lands in question.
The letter said the tribunal had reason to believe that a person or persons who had beneficial interest in PPI may also have a beneficial interest in JWP.
Mr Miley obeyed the tribunal's subpoena and handed over documents. Judicial review proceedings were issued challenging the tribunal's actions. The tribunal has since returned the documents but made copies so it might inspect those documents over which privilege was claimed. The court was also told the tribunal had stated it had reason to believe the beneficial owners of PPI and JWP were the same and the transfer of the Carrickmines lands to JWP may have been "an elaborate charade" to perhaps get support for rezoning. The tribunal had said it had reason to believe the beneficial owners of JWP were Irish who had gone to "elaborate lengths" to conceal their identities.
Mr Nesbitt argued the tribunal had consistently failed to give his client the information regarding the assertions made against JWP which would allow Mr Miley to challenge the tribunal's entitlement to act as it had.
