Stephen Miley (applicant) v Mr Justice Feargus Flood, the Sole Member of the Tribunal of Inquiry into Certain Planning Matters and Payments (respondent); and Law Society of Ireland (notice party).
Judicial Review - Fair procedures - Solicitors - Right to be apprised of information in the possession of a tribunal at the investigative stage of its work.
Judicial Review - Evidence - Solicitors - Legal professional privilege - Client identity privilege.
The High Court (Mr Justice Kelly); judgment delivered 24 January 2001.
A SOLICITOR acting for a party before a tribunal, firstly, does not have any rights over and above those of any other citizen to be apprised of detailed information in the possession of a tribunal, where it is engaged in a preliminary investigation at the first stage of its work; and, secondly, is not entitled to maintain a claim of privilege in respect of the identities of the persons instructing him on behalf of his client company. The High Court so held in dismissing the applicant's claim for relief.
Richard Law Nesbitt SC, Hugh O'Neill SC and Martin Hayden BL for the applicant; Frank Clarke SC and Brian Murray BL for the respondent; Eoghan Fitzsimons SC and Paul Anthony McDermott BL for the notice party.
Mr Justice Kelly set out the facts of the case stating that the applicant was a solicitor who acted for a company called Jackson Way Properties Ltd. This involved furnishing legal advice to that company and also acting for it in litigation conducted both in this court and the Supreme Court. The respondent tribunal had been established by an instrument executed by the Minister for the Environment and Local Government on 4 November 1997, which was subsequently amended by a further instrument of 15 July 1998. Among its terms of reference the tribunal was required to report on any acts associated with the planning process which might in its opinion amount to corruption, or which involved attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties.
The notice party was joined because the issues in the case could have implications for the solicitors' profession as a whole.
The respondent had stated that that it had been informed that monies were paid to politicians for the purpose of securing the rezoning of certain lands, at Carrickmines, County Dublin, belonging to Jackson Way Properties. These monies were, it was suggested, paid by or on behalf of the company and/or its predecessors, to politicians, in an effort to secure the rezoning of these lands. Part of the lands had indeed been rezoned.
Jackson Way Properties had acquired lands at Carrickmines from a company called Paisley Park Investments Ltd. The latter company, to which a liquidator was appointed in 1992, had been incorporated in the Isle of Man and its registered shareholders were bodies corporate registered in the Isle of Man, Panama and the British Virgin Islands. Jackson Way Properties was a company registered in the United Kingdom and its directors and shareholders were recorded in the company's registration documentation as non-Irish nationals. Although the lands had passed from Paisley Park to Jackson Way in 1994, the respondent stated that it had reason to believe that the beneficial ownership of both companies was the same or largely the same and that the transfer may have been an elaborate charade to convey the impression of change of ownership, possibly connected with obtaining support for the subsequent zoning motion after the transfer to Jackson Way.
The applicant was summoned to appear before the respondent. The summons required the applicant to appear so as to give evidence in relation to and to bring with him all documents and records in his possession and relating to Jackson Way Properties. On foot of that summons the applicant was asked to disclose to the respondent the names of the persons from whom he had received instructions on behalf of Jackson Way.
The applicant expressed his belief that the information sought was confidential and that his client had given him specific instructions not to breach privilege. Legal submissions were presented on the applicant's behalf on 6 June 2000 and next day the respondent ruled that legal professional privilege did not cover the identity of persons providing instructions to the applicant. As a result of that ruling judicial review proceedings were commenced.
Mr Justice Kelly stated that there were two distinct attacks mounted against the requirement that the applicant disclose the identity of the persons who gave him instructions on behalf of Jackson Way.
The first was procedural. It was said that he should not have been so directed unless he was fully apprised of the information and/or evidence in the possession of the respondent which led to the issue of the witness summons and the request for the identity of the persons who gave instructions to the applicant. He contended that because he was a solicitor he was in a unique position over and above any other witness. On a review of the correspondence which had passed between the applicant and the respondent Mr Justice Kelly held that it was clear that prior to giving evidence before the respondent the applicant had been apprised of the information in the hands of the respondent which triggered the issue of the witness summons. However the applicant maintained that as a matter of law he was entitled to know the facts known to the respondent so that he might determine whether the decision of the respondent should be impugned or not.
Mr Justice Kelly said that the applicant faced a number of substantial difficulties with this argument. First, he had not sought in these or any other proceedings to quash the witness summons which had been issued. Secondly, and much more importantly, the applicant sought to invoke a right to detailed information in circumstances where the respondent was engaged in a preliminary investigation at the first stage of its work. That line of argument had been advanced before the High Court and the Supreme Court on a number of occasions both in the context of public inquires and investigative work being carried out by inspectors appointed under the Companies Acts. On each occasion when arguments seeking to invoke rights of this type had been made they had been rejected.
Citing the unreported High Court decisions of Lawlor v Mr Justice Flood (Mr Justice Kearns, 2 July 1999), In the matter of National Irish Bank (under investigation) and in the matter of the Companies Act 1990 (Mr Justice Shanley, 13 July 1998) and his own judgment in Re National Irish Bank Financial Services Ltd and in re Companies Act 1990 (19 March 1999), Mr Justice Kelly held that there was no entitlement at law for the applicant to be furnished with any more information than he had already been given by the respondent and that fair procedures had been followed, both in relation to the issue of the witness summons and the posing of the questions to him, concerning the identity of the persons who had given him instructions. The mere fact that the applicant was a solicitor did not give him any rights over and above those of any other citizen to be apprised of information of the type sought at the investigative stage of the respondents work.
The second attack against the respondent's ruling was to the effect that even if the procedures followed were correct, as a matter of law the information sought was the subject of legal professional privilege and the applicant could not be forced to disclose the identity of the person in question.
Mr Justice Kelly stated that legal professional privilege was more than a mere rule of evidence; it was a fundamental condition on which the administration of justice as a whole rested. That was the conclusion which Mr Justice Kelly himself had reached in Duncan v Governor of Portlaoise Prison [1997] 2 ILRM 296. The decision in that case had been upheld by the Supreme Court (unreported 5 March 1997, ex tempore). Legal professional privilege was also protected by Article 6 of the European Convention on Human Rights.
The court noted that while the concept of legal professional privilege existed in other common law jurisdictions, neither it nor the general law of privilege was identical with that which obtained in this jurisdiction. Consequently, many of the foreign authorities, while interesting and instructive, were of limited value when they fell to be considered here. The court also noted that there was no Irish authority which dealt specifically with the question of client identity privilege.
The court held that the starting point for its consideration had to be a decision which was binding upon it and represented the law in this jurisdiction, the decision of the Supreme Court in Smurfit Paribas v AAB Export Finance Ltd [1990] 1 IR 469. Mr Justice Kelly noted that this case had established the following propositions. Firstly, that legal professional privilege could only be invoked in respect of legal advice and not legal assistance. Secondly, where the claim of privilege was challenged, the onus was placed on the person invoking that privilege to justify it. Thirdly, that the correct formulation of that privilege which arose in Irish law, other than in contemplation of furtherance of legal proceedings was as stated by the then Chief Justice Mr Justice Finlay in Smurfit Paribas as follows: ". . . where it is established that a communication was made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice, whether at the initiation of the client or lawyer, that communication made on such occasion should in general be privileged or exempt from disclosure, except with the consent of the client." Fourthly, what was privileged was the communication. That communication only attracted privilege if it sought or contained legal advice. The communication of any other information was not privileged in Irish law.
The court noted that even the most confidential information given to a solicitor would not attract legal professional privilege unless it came within the Smurfit Paribas rubric. In this regard a solicitor was in no different position to other persons who might be the recipients of confidential information. Confidentiality of information did not of itself create a privilege from disclosure.
Having considered authorities from England, Scotland, Australia, New Zealand, Canada and the United States, Mr Justice Kelly concluded that the applicant was not entitled as a matter of Irish law to maintain a claim of privilege over the identity of persons who provided him with his instructions on behalf of Jackson Way Properties. Any such claim would be inconsistent with the binding views of the Supreme Court in Smurfit Paribas.
Even in England, where a wider form of legal privilege existed, the position would, on the basis of the English authorities, be no different. In foreign jurisdictions, where the law of privilege was not the same as in this jurisdiction, there was nonetheless, a strong body of legal authority reaffirming the general principle that a solicitor was not entitled to maintain a claim of privilege in respect of the identity of his client.
Mr Justice Kelly noted that a dilution of this general principle arose where either the naming of the client would incriminate, or where the identity of the client was so bound up with the nature of the advice sought, that to reveal the client's identity would be in fact to reveal that advice. There was no evidence whatsoever to suggest that the naming of those persons by the applicant would incriminate them, nor was there any evidence that the identity of those persons was so bound up with the nature of the advice sought that to reveal the identity would in fact to be to reveal the advice. Consequently, even if this exception to the general principle were to apply, it would have no bearing upon the present case. Mr Justice Kelly held that the applicant was not entitled to the declaration which he sought, the respondent was entitled to require of him the identity of the persons who furnished him with instructions on behalf of Jackson Way Properties and he must now furnish that information to the respondent.
Accordingly, the application was dismissed.
Solicitors: Miley & Miley (Dublin) for the applicant; O'Reilly Doherty & Co (Dublin) for the respondent; the Law Society for the notice party.
Niall O'Hanlon Barrister
