An appeal to the Supreme Court by a solicitor against a High Court decision directing him to disclose the identity of persons who instructed him on behalf of a company investigated by the Flood tribunal did not proceed yesterday after the parties reached an agreement.
Under the agreement, dealing with the tribunal's direction that Mr Stephen Miley produce documents to identify those instructing him on behalf of Jackson Way Properties, he will produce an affidavit of discovery listing material documents, including documents over which he claims privilege. If any issue arises regarding privilege, this will be determined by the tribunal chairman, subject to Mr Miley's right to seek a judicial review of any decision.
The Supreme Court, without expressing any opinion on the High Court judgment, struck out Mr Miley's appeal against the High Court's decision that he was not entitled to maintain a claim of legal professional privilege over the identity of persons who provided him with instructions 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 liquidated in 1994 which formerly held the title to lands at Carrick mines, Co Dublin, now owned by JWP) to certain politicians in an effort to secure rezoning.
In his High Court judgment on Mr Miley's challenge, Mr Justice Kelly said the tribunal had been told monies were paid to politicians to secure rezoning of the Carrickmines lands and that to inquire into such allegations, the tribunal needed to know the identities of those who were conducting the business of and/or were the beneficial owners of JWP.
Although JWP was an Isle of Man-registered company, the tribunal had reason to believe the beneficial owners were Irish people who appeared to have gone to elaborate lengths to disguise their identities.
Last year, Mr Miley, of Miley and Miley solicitors, Moles worth Street, Dublin, declined to identify those who instructed him on behalf of JWP. The tribunal held Mr Miley's claim to privilege did not cover the identity of those providing instructions to him.
Mr Miley challenged this ruling and last January he was ordered by the High Court to name his clients. He appealed to the Supreme Court. The Law Society was represented in the appeal by Mr Eoghan Fitzsimons SC. He said solicitors found themselves in a worse position in relation to privilege following Mr Justice Kelly's decision.
Ms Justice Denham, who presided over the five-judge Supreme Court, said there had been a difficulty in dealing with matters raised in the abstract and in the absence of fact about the documents. Decisions should be arrived at based on facts related to specifically identified documents and communications.
After considerable discussions in court, the parties had agreed a number of steps and the court endorsed these, she said.
Ms Justice Denham said the agreement afforded Mr Miley in substance the relief he sought.