High Court of Ireland Decisions
You are here:
BAILII >>
Databases >>
High Court of Ireland Decisions >>
Miley v. Flood [2001] IEHC 9; [2001] 2 IR 50; [2001] 1 ILRM 489 (24th January, 2001)
URL: http://www.bailii.org/ie/cases/IEHC/2001/9.html
Cite as:
[2001] 1 ILRM 489,
[2001] IEHC 9,
[2001] 2 IR 50
[
New search]
[
Printable RTF version]
[
Help]
Miley v. Flood [2001] IEHC 9; [2001] 2 IR 50; [2001] 1 ILRM 489 (24th January, 2001)
THE
HIGH COURT
Judicial
Review
No.
310 JR 2000
BETWEEN
STEPHEN
MILEY
APPLICANT
AND
MR
JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THE TRIBUNAL
OF
ENQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS
RESPONDENT
AND
LAW
SOCIETY OF IRELAND
NOTICE
PARTY
Judgment
of Mr. Justice Kelly delivered the 24th day of January, 2001
THE
APPLICANT
1. The
applicant is a solicitor. He is a partner in the firm of Miley and Miley
Solicitors of 35 Molesworth Street, Dublin 2. Since October 1994 he has acted
as solicitor for a company called Jackson Way Properties Limited (the company).
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
2. The
respondent was established by an instrument executed by the Minister for the
Environment and Local Government on the 4th of November, 1997, which was
subsequently amended by a further instrument of the 15th of July, 1998.
Amongst its terms of reference the respondent is required to :-
“
In the event that [it] in the course of its enquiries is made aware of any acts
associated with the planning process.... which may 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, it shall report on such acts and should in particular make
recommendations as to the effectiveness and improvements of existing
legislation governing corruption in the light of its enquiries”.
3. The
terms of reference
inter
alios
stipulate that the respondent should enquire fully into the matters referred to
in those terms in respect in which evidence exists and which warrant proceeding
to a full public enquiry.
THE
COMPANY
4. At
the heart of this application is the company. It is an English company. In
1994 it acquired lands at Carrickmines, County Dublin. It acquired those lands
from a company called Paisley Park Investments Limited. That company was
incorporated in the Isle of Man. Its registered shareholders were bodies
corporate registered in the Isle of Man, Panama and the British Virgin Islands.
In March, 1992, a liquidator was appointed to Paisley Park Investments Limited.
Following that, the company was registered as owner of the lands in question.
5. The
respondent has asserted in correspondence that it has reason to believe that a
person or persons with a beneficial interest in Paisley Park Investments
Limited may also have a beneficial interest in the company. It has likewise
said in correspondence that it is aware that the company engaged consulting
engineers and planning consultants to forward submissions to Dun Laoghaire
Rathdown County Council setting out reasons why its land should be rezoned. It
has also said that it has been informed that monies were paid to politicians
for the purpose of securing the rezoning of the company’s lands at
Carrickmines. These monies were, it is suggested, paid by on or behalf of the
company and/or its predecessors to politicians in an effort to secure the
rezoning of these lands. Part of the lands have indeed been rezoned.
6. In
the course of a hearing which took place on Tuesday the 6th of June, 2000,
counsel of behalf of the respondent expanded somewhat on the above information
all of which was contained in correspondence emanating from the respondent. He
said
“The
background to the matter is that in connection with the preparation of the 1993
County Dublin Development Plan, there were attempts to rezone certain
agricultural zoned lands in Carrickmines, as development lands. The registered
owner of the lands at that time was a company called Paisley Park Investments
Limited.
The
Tribunal has been told substantial monies were paid to members of Dublin County
Council in connection with their voting on the zoning motions, and on
subsequent zoning proposals in 1998, when the lands were owned by Jackson Way
Properties Limited.
In
order to enquire, or to enable us to enquire into these very serious
allegations, the Tribunal requires to know the identities of the persons who
were conducting the business of and/or were the beneficial owners of Jackson
Way Properties Limited.
Although
the company is registered abroad, the Tribunal has reason to believe that the
beneficial owners of the company are Irish.
The
Tribunal’s enquiries are directed, at present, to ascertaining the
identity or identities of the beneficial owner or owners of the company, and
also any other person or persons who may have been involved in the payments of
monies to members of Dublin County Council in connection with the lands in
question.
It
appears that the beneficial owners of this company have gone to elaborate
lengths to disguise their identities. And indeed the predecessors in title
also went to elaborate lengths to conceal their identities. The present
registered owner, Jackson Way Properties Limited, became registered as owner of
the lands in question on the 5th of April 1994 after a members voluntary
winding up of Paisley Park Investments Limited.
This
latter company which is registered in the Isle of Man, had directors, both of
whom where Isle of Man residents. The original shareholders of Paisley Park
Investments Limited were companies registered in Panama, in the Isle of Man and
the British Virgin Islands.
The
liquidation of Paisley Park Investments Limited was concluded in December 1994,
and it appears in the course of this liquidation the property at Carrickmines
was transferred to Jackson Way Properties Limited.
Jackson
Way Properties Limited is a company registered in the United Kingdom and the
directors and the shareholders of that company, are recorded in the companies
registration documentation as non Irish nationals, resident in Birmingham.
Although
the land in Carrickmines passed from Paisley Park Investments Limited to
Jackson Way in 1994, the Tribunal has reason to believe that the beneficial
ownership of both companies is 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 Properties Limited.
In
order to enable it to enquire into the matter, the Tribunal needs to know the
identity of the persons who are the beneficial owners of Jackson Way Properties
Limited. For this reason we wrote to the company’s Solicitor, Miley and
Miley, in correspondence which I opened to Tribunal last week and in the course
of which correspondence a request was made to Miley and Miley to inform the
Tribunal of the identity of the person, or persons, for whom they received
instructions on behalf of Jackson Way Properties Limited.
As
you will recall, Mr. Stephen Miley of that firm attended before the Tribunal on
foot of the summons, I think on Monday of last week, Tuesday of last week, and
he declined to provide the Tribunal with this information.
He
was summonsed to appear, to produce documents and to answer questions put to
him. He attended on foot of the summons and produced documents, but claimed
legal professional privilege, both in respect of the questions which were asked
and in respect of the documents which were produced. In those circumstances he
directed that Mr. Miley should submit legal written submissions as to the basis
of his claim to legal professional privilege”.
THE
NOTICE PARTY
7. The
Law Society of Ireland was joined as notice party to these proceedings because
the issue of legal professional privilege may have implications for the
profession as a whole. I am grateful to counsel who appeared on the
Society’s behalf for the assistance given.
EVENTS
BEFORE THE RESPONDENT
8. As
is clear from the passage which I have reproduced from the hearing which took
place before the respondent on the 6th of June, 2000, the applicant was
summonsed to appear before the respondent. The summons is dated the 23rd of
May, 2000, and required the applicant to appear six days later to give evidence
in relation to and to bring with him all documents and records in his
possession relating to the company. The validity of that summons is not
challenged in these proceedings.
9. On
foot of that summons the applicant was asked to disclose to the respondent the
names of persons from whom he received instructions on behalf of the company.
His response was to assert his belief that that was a matter which was
protected by solicitor/client privilege and that consequently he was unable to
assist the Tribunal by divulging that information. Subsequently there were
considerable exchanges between the applicant and counsel on behalf of the
respondent in the course of which he was asked to state the nature and the
basis of the privilege claimed by him. In the course of that he expressed his
belief that the information sought was confidential and that his client had
given him specific instructions not to breach privilege. The documents which
had been produced by the respondent were at the conclusion of that days hearing
left with the Tribunal pending the presentation of legal submissions on the
applicant’s behalf. These submissions were presented on the 6th of June,
2000. These written submissions expanded upon the assertions made by the
applicant to the effect that communications passing between him and his clients
were confidential and were privileged.
10. On
the 7th of June, 2000, the respondent gave his ruling on the matter. He held
that legal professional privilege did not cover the identity of the persons
providing instructions to the applicant. As a result of that ruling these
Judicial Review proceedings where commenced.
11. In
the course of the hearing and the submissions before the respondent a further
issue was raised by the applicant. He contended that the procedures followed
by the respondent were not fair and amounted to a denial of his rights in
natural and constitutional justice. He contends in this court that he ought to
have been apprised of all of the information in the possession of the
respondent so that he might know the factual basis upon which the witness
summons was first issued. This was necessary it was said by Mr Law Nesbitt
S.C. to “vindicate his rights” so that he might “form a view
as to whether there are grounds upon which the demand might be quashed”.
THE
PRESENT PROCEEDINGS
12. It
is not necessary to reproduce the somewhat tortuous history of these
proceedings in their early stages. The statement grounding the application was
amended on two occasions.
13. In
its reamended form the reliefs now sought against the respondent are:
- An
Order of Certiorari quashing the decision of the Tribunal dated the 7th of
June, 2000, [which directed the Applicant to make Discovery]; and
- A
Declaration that the Determination of the Tribunal to the effect that the
identity of the parties instructing the Applicant is not capable of
attracting
privilege and/or Solicitor/Client confidentiality is void, ultra vires and in
breach of the provisions of the Constitution of Ireland, 1937 and of the
provisions of the European Convention on Human Rights and is bad in law”.
14. The
first of these reliefs arises from an unfortunate confusion which appears to
have developed in the hearing before the respondent where Junior Counsel for
the applicant suggested that an affidavit of discovery should be sworn by the
applicant. It is now accepted that the real issue that the applicant wishes to
have determined in these proceedings is whether or not the respondent was
correct in rejecting the claim of privilege as to the identity of the persons
who gave him instructions on behalf of the company. Consequently the first of
these reliefs it is now conceded is not necessary. Indeed it could never
should have been granted since no order for discovery was in fact made. I can
therefore focus on the declaratory relief which is sought.
15. This
declaratory relief is sought in effect on two grounds . They are now set out
in the reamended statement grounding the Judicial Review application. They
read as follows:-
- At
the time of issuing the said Witness Summons the Respondent had not furnished
to the Applicant any or any adequate explanation or reason for its request that
he or his client waive solicitor/client privilege in respect of the information
sought nor had the Respondent identified to the Applicant any documents or
class of documents that it wished to examine or any basis upon which it could
lawfully seek the production of any documents or request the Applicant to make
an informed decision as to how or on what basis to advise his client to
consider the request of the Respondent to waive solicitor/client privilege in
respect of the said or any documents.
- The
Respondent was wrong in law in holding that as a matter of necessity the
identity of the person(s) from whom the Applicant received instructions
concerning Jackson Way Properties Limited could not be the subject of
solicitor/client privilege.
- Prior
to the Order of the 7th of June 2000 the Respondent acted ultra vires and in
breach of constitutional justice and fairness of procedures and had not
furnished to the Applicant any or any adequate factual basis to sustain the
making of an Order unravelling the solicitor/client privilege/confidentiality,
which factual basis was necessary to enable the Applicant to address the
Respondent as to the appropriateness or otherwise of the making of the said
Order.”
16. As
can be gleaned from the foregoing and from the arguments made before me there
are two distinct attacks mounted against the requirement that the applicant
disclose the identity of the persons who gave him instructions on behalf of the
company. The first is procedural. It is 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. The second is to the effect that even if the procedures followed
were correct, as a matter of law the information sought is the subject of legal
professional privilege and the applicant cannot be forced to disclose the
identity of the persons in question. I will consider each in turn.
THE
PROCEDURAL QUESTION
17. The
applicant contends that the respondent failed to fulfil an obligation owed to
him in law to provide him with sufficient facts as would enable him to
determine whether the decisions of the respondent to issue the summons and
require the provision of the information sought ought to have been made or not.
He contends through Mr. Law Nesbitt SC that because he is a solicitor he is in
a unique position over and above any other witness. The applicant must, it is
said, be equipped to defend his interests and should not be required to repose
trust in the respondent in respect of the order made requiring disclosure of
the information sought.
18. It
is necessary to look at what actually occurred before the respondent in order
to deal with this contention.
19. On
the 9th of May, 2000, the applicant was written to by the solicitor to the
respondent. The letter reads as follows:-
“The
Tribunal understands that your firm acts for Jackson Way Properties Limited and
that you personally appeared for and on behalf of that firm in relation to
recent High Court and Supreme Court proceedings.
The
Sole Member has directed me to write to you to ask you to furnish the names of
all persons from whom you received instructions on behalf of the above firm.
The
Sole Member has asked that you give this matter your immediate and personal
attention”.
20. On
the 22nd of May, 2000, the applicant wrote to the respondent in the following
terms:-
“I
refer to this matter and have now received preliminary instructions in the
matter from my clients.
My
clients, who are incorporated outside the jurisdiction, have asked me to
enquire from you the basis upon which the Tribunal is entitled to the
information requested. I would appreciate your letting me have the necessary
information to respond to this.
I
have felt it important to point out to my clients that the information you
have requested is, in my view, a matter, the confidentiality of which is
protected by the Solicitor/Client relationship. Having regard to this my
clients have also asked me to enquire from you the reason why the Sole Member
directed you to write to me in the fashion in which you have”.
21. On
the 23rd of May, 2000, the respondent replied:-
“Thank
you for your letter of the 22nd inst.
The
Tribunal is seeking the information referred to in my earlier letter as part of
its confidential investigations into matters pertaining to paragraph 5 of the
Tribunals Terms of Reference.
The
Tribunal has 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
Sole Member is anxious to obtain your co-operation and that of all persons who
have/had an interest, beneficial or otherwise, in Jackson Way Properties
Limited and its predecessors.
The
Tribunal is aware that Jackson Way Properties Limited is incorporated outside
the jurisdiction. However, this does not mean that persons who are or were
beneficially interested in the company were not resident within this
jurisdiction.
It
is the view of the sole member that any solicitor/client privilege which may
exist does not preclude you from furnishing to the Tribunal the information
sought. If, as you contend, the information sought is protected by the
solicitor/client relationship, the Sole Member requests that you and all
persons from whom or on whose behalf you received instructions in relation to
Jackson Way Properties Limited and its affairs waive any such confidentiality
by furnishing the information sought to the Tribunal.
The
sole member requests that you furnish the information sought by return and in
any event not later than 1 p.m. on the 26th of May 2000”.
22. On
the same day the applicant was served with a witness summons.
23. Before
the applicant appeared before the respondent he wrote a letter dated the 24th
of May, 2000. In the course of it he expressed his anxiety to co-operate in
any way possible with the respondent consistent with his duties as a solicitor.
He pointed out that his client had not waived solicitor/client privilege nor
had they accepted the Tribunal’s invitation to waive the confidentiality
referred to in the letter of the 23rd of May, 2000.
24. In
turn this letter was responded to on the 25th of May, 2000. In the course of
that letter the respondent pointed out that the applicant’s clients had
not accepted the Tribunal’s invitation to waive the confidentiality in
question. It went on:-
“The
Tribunal has learned that Paisley Park Investments Limited was your
client’s predecessor in title. That Company was incorporated in the Isle
of Man on the 5th of March, 1987 and the original holders of the share capital
were as follows:-
- Maskini
Management Limited of 12 Mount Havalock, Douglas, Isle of Man;
- Rentzenderinck
Investments Inc. of via Espana, 122, Bank of Boston Building, Panama 5, Panama;
- Zenon
of Napco Building, Main Street, Roadtown, Tortolla, British Virgin Island.
Paisley
Park Investments Limited appointed a Liquidator in March 1992 following which
your client was registered as owner of the lands in question.
The
Tribunal has reason to believe that a person or persons who had a beneficial
interest in Paisley Park Investments Limited may also have a beneficial
interest in Jackson Way Properties Limited.
The
Tribunal is further aware that your client engaged consulting engineers and
planning consultants to forward submissions to Dun Laoghaire/Rathdown Co.
Council setting out reasons why your client’s land should be rezoned. In
addition, an Architect has recently made submissions on behalf of your client
to Dun Laoghaire/Rathdown Co. Council in relation to the Carrickmines Great
Action Plan.
The
Tribunal is today writing to the persons concerned seeking from them the
information requested in the Tribunal’s letter to you of the 9th inst.
In
all those circumstances it seems clear that, an individual(s) have given and
continue to give instructions on behalf of your client and the Sole Member has
difficulty in understanding why the individual(s) concerned where not allowed
(sic) their names to be furnished to the Tribunal.”
25. This
correspondence makes it clear that prior to giving evidence before the Tribunal
the applicant had been apprised of the information in the hands of the
respondent which triggered the issue of the witness summons. The summons could
not have come as any surprise to him and prior to entering the witness box he
knew precisely why the Tribunal wished to elicit information from him. But he
says that as a matter of law he is entitled to more. He says he is entitled to
know the facts known to the Tribunal so that he may determine whether the
decision of the Tribunal should be impugned or not.
26. A
number of substantial difficulties confront the applicant in respect of this
argument.
27. First,
he has not sought in these or any other proceedings to quash the witness
summons which was issued. At the hearing before the respondent on the 6th of
June, 2000, his counsel confirmed to the respondent that there was no doubt as
to the entitlement to issue the subpoena. Secondly, and much more importantly,
the applicant seeks to invoke a right to detailed information in circumstances
where the respondent is engaged in a preliminary investigation at the first
stage of its work. This line of argument has been advanced before this Court
and the Supreme Court on a number of occasions both in the context of public
inquiries and investigative work being carried out by inspectors appointed
under the Companies Acts. On each occasion when arguments seeking to invoke
rights of the type asserted here have been made they have been rejected.
28. In
my opinion the contention made by the applicant to the effect that the
respondent is obliged to provide him with information of the type which he
seeks is incorrect. The nature of the functions being discharged by the
respondent obliges it to use the powers conferred upon it by statute to examine
allegations. In the present case the nature of those allegations was fully
explained to the applicant in correspondence prior to him giving evidence. The
respondent was obliged to do no more. If he were obliged to do so his
investigative function would be compromised, perhaps fatally. No great
imagination is required to envisage endless challenges to every witness summons
with the respondent being required at the investigative stage of his work to
lay bare for minute examination every piece of information in his possession
concerning what are at that stage of the work are mere allegations. To require
the provision of the facts underlying the Tribunal’s investigation would
undermine the right and indeed the obligation of the Tribunal to investigate
allegations coming to his attention. It would generate the likelihood of an
inter partes contest as to the viability of those allegations in circumstances
where the very purpose of the Order made by the respondent is to enable an
investigation of those allegations to take place.
29. I
am of the view that the judgments of Kearns J. in
Lawlor
-v- Mr. Justice Flood (unreported, High Court, Kearns J, 2nd July, 1999)
,
Shanley J. in
In
the matter of
National
Irish Bank
(under investigation) and in
the matter of the Companies Act, 1990
( High Court, Shanley J, 13th, July, 1998) and my own judgment in
Re
National Irish Bank Ltd
.
and in
Re
National Irish Bank Financial Services Ltd.
and in
Re Companies Act, 1990
(Unreported, High Court, Kelly J. 19th March, 1999)
are apposite to this argument. In
Lawlor’s
case
the applicant argued that in the absence of detailed information as to the
basis of the allegations raised against him, including the sources relied upon,
he should not be required to make an affidavit. Kearns J. said at page 58:-
“However,
it seems to me that the process of information gathering with which discovery
is clearly concerned forms part of the preliminary investigation or the first
stage of the Tribunal’s work. It would needlessly hamper and interfere
with the Tribunal’s work if it had to meet all the demands of the
Applicant at this point in time”.
30. Whilst
he was there dealing with discovery it does not appear to me that there is any
material difference in principle between that and the information which was
sought
viva
voce
from the applicant here.
31. Shanley
J. said in
N.I.B.
(13th July 1998) at page 31:-
“I
am satisfied that there is no entitlement to invoke the panoply of rights
identified by the Supreme Court at the information gathering stage of the
Inspector’s work. The procedures identified by the Inspectors following
the outcome of the first stage accord in my view with the requirements of
fairness and justice and guarantee, where appropriate, the exercise of the
rights identified in the Haughey case”.
32. Whilst
he was there dealing with investigations pursuant to the provisions of the
Companies Acts there are many similarities between them and the investigative
phase of the inquiry being carried out by the respondent in the present case.
In my own judgment in
N.I.B.
at pages 33-36 I said:-
“
The
Applicants say that having regard to the position in re Haughey 1971 I.R. 217
they should now be entitled to the documents which they seek. This is so
notwithstanding the fact that the Inspectors are at this stage only engaged in
the first stage of their investigation, namely information gathering. I have
formed the view that the Applicants have misconceived the functions of the
Inspectors appointed under the provisions of the Companies Act 1990. An
inspection of this type is primarily investigative. It only becomes
adversarial in limited circumstances. In
Chestvale
Properties Limited -v- Glacken
(1993) 3 I.R. 35, Murphy J. cited with approval the observations of Sachs L.J.
in
Re
Purgamon Press Limited
[1971] Ch.388. That judge said that Inspectors appointed under the Companies
Acts start
‘very
often with a blank sheet of knowledge [and] have to call for information in
whatever way it can best be obtained. That may be by interview, it may be from
statements obtained in writing, it may be from accounts and other documents, or
it may be by their exercising their powers under Section 167, subsection 3 to
put questions to individuals either on oath or not on oath.
One
way or another it may be a considerable time before the inspectors have before
them sufficient information
to
see any pattern in the affairs of a company. Even when this pattern commences
to take shape, they may need further material before the possibility emerges of
any criticism attaching to individuals. Moreover, that possibility may derive
from documentary evidence which is in substance uncontested, or it may derive
from a matter on which there may be a conflict of evidence between some witness
and the person to whom blame may be attributed. In the latter case there may
come the stage when the Inspectors have to decide whether to simply record that
conflict or whether to seek to resolve it. The more complex the affairs of the
company and the greater the number of subsidiary companies the longer it may
take before those respective stages are reached.’
33. Murphy
J. went on to say:-
‘The
present proceedings were instituted when the inquiry had reached only a very
preliminary and exploratory stage.... Even if the presumption were otherwise
and that one should anticipate a stage being reached in which the Respondent
would find it necessary to make a choice between conflicting claims, it is
clear that that stage has not yet been reached. Accordingly, the present
application is premature insofar as it is based upon the contention that the
inspector is engaged in a task which at present involves him in a quasi
judicial function’.
In
the present case it is to be noted that the Inspectors are only at a
preliminary stage of their investigation and have not been called upon to
exercise any quasi-judicial functions since that will not arise until stage two
is reached. At stage two of their investigation they have, in my view, made it
clear that all of the rights to which a party might be entitled under the
decision in
Re
Haughey
will be respected.
The
English inquiry which gave rise to the decision in
Re Pergamon Press Ltd.
spawned further litigation which was also dealt with in the Court of Appeal.
It was in
Maxwell
-v- Department of Trade and Industry and Others
[1974] 2ALL E.R. 122. There Lord Denning M.R., called attention to what an
investigation under the Companies Act is not. He said, at page 127:-
‘Remember
what it is not. It is not a trial of anyone, or anything like it. There is no
accused person. There is no prosecutor. There is no charge. It is not like a
disciplinary proceeding before a professional body. Nor is it like an
application to expel a man from a trade union or a club, or anything of that
kind. It is not even like a committee which considers whether there is a prima
facia case against a person. It is simply an investigation without anyone
being accused.’
Insofar
as this jurisdiction is concerned that, in my view, is a correct summary of the
position which obtains at least insofar as the investigatory stage of the
Inspector’s task is concerned. Once one moves into the second stage
then, whilst the investigation is not transformed into an adversarial hearing,
nonetheless fair procedures have to be observed insofar as any adverse
conclusions may be drawn in relation to individuals. The procedure which the
Inspectors have outlined as one which they will follow if such a stage is
reached is in complete compliance with their obligations to observe fair
procedures under the relevant jurisprudence. It follows therefore, that I take
precisely the same view as did Shanley J. that there is no entitlement to
invoke the rights established in
Re
Haughey
at the information gathering stage of the Inspector’s work”.
34. That
passage from my own judgment and the earlier passage from the judgment of
Shanley J. were considered by Kearns J. in Lawlor’s case at page 62 were
he said:-
“These
two judgements seem to be definitive on the question of when
Re
Haughey
rights arise, at least in the absence of special circumstances”.
35. I
have come to the conclusion that in this case there is no entitlement at law
for the applicant to be furnished with any more information than he has already
been given by the Tribunal and that fair procedures have 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 have given him instructions.
36. As
to the contention that because he is a solicitor he is entitled to greater
rights than any other individual I find no basis to exist to support that
proposition. His rights are no greater or less than any other witness. If in
the course of his testimony an issue arises which touches upon his professional
responsibilities or, as in the present case, his entitlement to claim
privilege, it can be dealt with by the respondent or by means of Judicial
Review in this court. But the mere fact that he is a solicitor does not give
him any rights over and above that of any other citizen to be apprised of
information of the type sought at the investigative stage of the
Tribunal’s work.
37. I
now turn to the second question which calls for my adjudication. It is whether
the respondent was wrong in law in concluding that the applicant was not
entitled to claim legal professional privilege as to the identity of the
persons who gave him instructions on behalf of the company and that he was
therefore obliged to disclose that information.
LEGAL
PROFESSIONAL PRIVILEGE
38. Legal
Professional Privilege is more than a mere rule of evidence. It is a
fundamental condition on which the administration of justice as a whole rests.
That it the conclusion which I reached in
Duncan
-v- Governor of Portlaoise Prison
[1997] 2 ILRM 296. In that case I quoted with approval a passage from the
speech of Lord Taylor of Gosforth in the case of
R -v- Derby Magistrates Court Ex parte B
[1996] 1 AC 487 where, having set forth the history of legal professional
privilege in English law he concluded at page 507 as follows:-
“The
principle which runs through all these cases, and the many other cases which
were cited, is that a man must be able to consult his lawyer in confidence,
since otherwise he might hold back half the truth. The client must be sure
that what he tells his lawyer in confidence will never be revealed without his
consent. Legal Professional Privilege is thus much more that an ordinary rule
of evidence, limited in its application to the facts of a particular case. It
is the fundamental condition on which the administration of justice as a whole
rests”.
39. My
decision in Duncan’s case was upheld by the Supreme Court. (unreported
5th March, 1997, ex tempore).
40. Similar
conclusions as to the fundamental nature of legal professional privilege have
been reached by courts of other jurisdictions. For example in
Descoteaux
-v- Mierzwinksi and the Attorney General of Quebec et al
[1982] 141 DLR (3d) 590, the Supreme Court of Canada took the view that the
right to legal confidentiality had developed from a rule of evidence into a
substantive right. Lamar J., in delivering of the judgment of the court, said:-
“Although
the right to confidentiality first took the form of a rule of evidence, it is
now recognised as having a much broader scope, as can been seen from the manner
in which this Court dealt with the issues raised in Solosky, supra”.
41. Earlier
in his judgment he said:-
“
there is no denying that a person has a right to communicate with a legal
adviser in all confidence, a right that is “founded upon the unique
relationship of solicitor and client” (Solosky, supra). It is a personal
and extra patrimonial right which follows a citizen throughout his dealings
with others. Like other personal, extra patrimonial rights, it gives rise to
preventive or curative remedies provided for by law, depending on the nature of
the aggression threatening it or of which it was the object. Thus a lawyer who
communicates a confidential communication to others without his clients
authorisation could be sued by his client for damages; or a third party who had
accidentally seen the contents of a lawyers file could be prohibited by
injunction from disclosing them.”
42. At
page 603 he said
:-
“The
following statement by Wigmore... of the rule of evidence is a good summary, in
my view, of the substantive conditions precedent to the existence of the right
of the lawyers client, to confidentiality: ‘Where legal advice of any
kind is sought from a professional legal adviser in his capacity as such, the
communications relating to that purpose, made in confidence by the client, are
at his instance permanently protected from disclosure by himself or by the
legal adviser, except the protection be waived’.
Seeking advice from a legal advisor includes consulting those who assist him
professionally (for example, his secretary or articling student) and who have
as such had access to the communications made by the client for the purpose of
obtaining legal advice.
There
are exceptions. It is not sufficient to speak to a lawyer or one of his
associates for everything to become confidential from that point on. The
communication must be made to the lawyer or his assistants in their
professional capacity; the relationship must be a professional one at the exact
moment of the communication. Communications made in order to facilitate the
commission of a crime or fraud will not be confidential either, regardless of
whether or not the lawyer is acting in good faith”.
In
ESSO
Australia Resources Ltd. -v- Sir Daryl Dawson
[1999] FCA 363 the Federal Court of Australia had this to say on the topic:-
“Legal
professional privilege has long been the subject of controversy. It operates
to exclude evidence not because of its unreliability but to advance other
objectives. Jeremy Bentham regarded the exclusion of probative evidence as
“one of the most pernicious and most irrational notions that ever found
its way into the human mind”: Rationale of Judicial Evidence (J S Mill
ed) (1827) at 193-194. But the judgment of the common law has been that while
the central objective of the legal system is to search for truth, it is more
important that some communications be kept secret. In the case of legal
professional privilege, secrecy is defended on the basis is that it would
promote the administration of justice. “The systemic benefits of the
privilege are commonly understood to outweigh the harm caused by excluding
critical evidence”:
Swidler
-v- United States
(1998) 141 L ed 2d 379 at 389 per O’Connor J (in dissent)” .
43. Notwithstanding
that controversial history however the Federal Australian Court nonetheless said
:-
“Historically,
legal professional privilege was justified as a vindication of the oath and
honour of the lawyer. But it came to be recognised that the privilege has a
more solid foundation. In the absence of the privilege a client would not
freely consult with his lawyer. He would not make a full and frank disclosure
of the material facts upon which the lawyers advice is sought. Thus is said
that one effect of the denial of the privilege could, some say that it would,
greatly inhibit the professional advice and assistance given by a lawyer. This
inhibition would significantly undermine the proper functioning of the
adversarial system of justice. These considerations, among others, have lead
courts to accept that the privilege is not merely a rule of evidence but a
basic principle of the common law: a principle that transcends the normally
predominant principle that all rational means for ascertaining the truth should
be employed in the curial process”.
44. Legal
professional privilege is also protect by the European Convention on Human
Rights. In
Niemitez
-v- Germany
(1992) 16 EHRR 97 the European Court of Human Rights took the view that a
warrant which permitted the search of a lawyers office was “not necessary
in a democratic society”. The power, which took no account of any
special protection which might be desirable in relation to the lawyer’s
premises was disproportionate to its purposes. The Court took the view that
where a lawyer is involved
“
...an encroachment on professional secrecy may have repercussions on the proper
administration of justice and hence on the rights guaranteed by Article 6 of
the Convention”.
45. This
short survey of the international scene demonstrates that in all of the leading
common law countries, legal professional privilege exists and is regarded as
being very much more than a rule of evidence. Rather, just as in this
jurisdiction, it constitutes an essential condition upon which the
administration of justice rests. In the context of European human rights it is
protected by Article 6 of the Convention.
THE
IDENTITY CASES
46. The
question of whether or not the identity of a client attracts the protection of
legal professional privilege is one which has exercised the minds of courts in
various jurisdictions over many years. I have been taken on something of a
grand tour of what appears to be all of the relevant authorities in every
common law jurisdiction. Whilst that was an interesting experience and I am
grateful for it, like many things experienced while abroad, they are never
quite the same when they are sought to be re-experienced on native soil. The
panorama which was opened up to me on this tour demonstrates that whilst the
concept of legal professional privilege exists in all of these countries
neither it nor the general law of privilege is identical with that which
obtains in this jurisdiction. Consequently many of these authorities whilst
interesting and instructive are of limited value when they fall to be
considered here.
47. The
starting point of my consideration has to be a decision which is binding upon
me and which represents the law of this jurisdiction. That case is
Smurfit
Paribas Bank Limited -v- AAB Export Finance
Limited
[1990] 1 IR 469. This case sets out the principles underlying the law of
privilege properly applicable to communications between a client and his
lawyers. It is against the background of these principles that the question of
the entitlement not to disclose the identity of a client or persons giving
instructions on behalf of that client falls to be viewed.
48. In
the course of his judgment Finlay C J said at page 477:-
“
The existence of a privilege or exemption from disclosure for communications
made between a person and his lawyer clearly constitutes a potential
restriction and diminution of the full disclosure both prior to and during the
course of legal proceedings which in the interests of the common good is
desirable for the purpose of ascertaining the truth and rendering justice.
Such privilege should, therefore, in my view, only be granted by the courts in
instances which have been identified as securing an objective which in the
public interest in the proper conduct of the administration of justice can be
said to outweigh the disadvantage arising from the restriction of disclosure of
all the facts.
It
is necessary to bear these general considerations in mind in attempting to
ascertain the underlying principle which appears to have led to the expansion
of the privilege for communications with a lawyer from cases of actual or
contemplated litigation to cases of communication seeking legal advice and/or
legal assistance other than advice.
The
decided cases did not appear to me provide any satisfactory explanation of this
expansion”.
The
Smurfit
case established the following propositions:-
- Legal
professional privilege can only be invoked in respect of legal advice and not
in respect of legal assistance;
- Where
the claim of privilege is challenged, the onus is placed upon the person
invoking that privilege to justify it;
- The
correct formulation of that privilege which arises in Irish law, other than in
contemplation of furtherance of legal proceedings is 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 the lawyer, that communication made on such an occasion should in
general be privileged or exempt from disclosure, except with the consent of the
client”
(Per Finlay CJ at 478).
- What
is privileged is the communication. That communication only attracts privilege
if it seeks or contains legal advice. The communication of any other
information is not privileged in Irish law.
THE
APPLICANTS SUBMISSION
49. The
conclusion stated in the written submission furnished to the court on behalf of
the applicant reads as follows:-
“It
is submitted that the position in relation to legal professional privilege is
very clear. The privilege attaches to all communications made between a client
and a solicitor acting in his capacity as legal advisor, whether or not
connected to actual or contemplated litigation. A solicitor, asked to disclose
information concerning his client, other than the identification of such
client, is prima facie bound to withhold such information. The onus is
therefore on the party seeking disclosure of confidential information to prove
that an exception to the rule applies. Such exceptions are very strictly
defined, applying only where there is some definite charge or fraud or
illegality. Mere surmise or conjecture is insufficient. There must exist an
allegation of fact sufficient to displace the privilege”.
THE
LAW SOCIETY’S CONTENTION
50. In
its written submissions on the topic of the identity of a client the Law
Society submits as follows:-
“It
is submitted that in appropriate cases the identity of a client may be
protected by what is know as ‘advice privilege’. According to a
leading English text on privilege the elements of advice privilege are:-
- A
communication whether written or oral;
- Made
confidentially;
- Between
a client and his lawyer, acting in a professional capacity;
- Made
for the dominant purpose of enabling the client to seek or the lawyer to give
legal assistance. (Passmore ‘Privilege’ (1998) 37)
It
is clear that advice privilege can be claimed where the lawyer’s advice
goes beyond the consideration of purely legal matters to include advice on the
commercial aspects of the transaction in which he is engaged on behalf of his
client. Thus, in
Balabel
-v- Air India
[1988] 1Ch 317, Taylor L J stated
“...legal
advice is not confined to telling the client the law; it must include advice as
to what should prudently and sensibly be done in the relevant legal
context....the range of assistance given by solicitors to their clients and of
activities carried out on their behalf has greatly broadened in recent times
and is still developing”
.
Similarly
in
Nederlandse
Reassurantie Group Holding NV -v- Bacon and Woodrow (a firm) and others
[1995[ 1 ALLER 976 Colman J noted that a solicitors professional duty or
function is frequently not exclusively related to the giving of advice on
matters of law. He stated “It not infrequently relates to the commercial
wisdom of entering into a given transaction in relation to which legal advice
is also sought”.
It
is sometimes suggested that the identity of a client can never be the subject
of legal professional privilege. In fact this is not so and is an inaccurate
description of the law. The true position is that a Court has a discretion as
to whether or not to order the disclosure of the clients name. In exercising
this discretion the Court should consider such factors as:-
- whether
circumstances of confidentiality surround the name of the client;
- whether
the client has communicated his identity confidentially for the purpose of
being advised by the solicitor, and has not made it know to the world at large;
- whether
the client has given express instructions that he retained the solicitor on
condition that his identity should be kept confidential and should not be
disclosed;
- whether
the disclosure of the clients name will have the practical effect of disclosing
confidential communications between lawyer and client;
- whether
the clients identity is extraneous to any confidential communications;
- whether
the client has waived the privilege that cloaks his identity.
It
is submitted that this examination will demonstrate that the existence of
supposed rule that a client’s identity cannot be protected is not well
founded”.
THE
RESPONDENTS DETERMINATION
51.
I
did not purpose to rehearse here in detail the lengthy reasoned determination
given by the respondent on this issue. It is sufficient if I recite that the
respondent indicated that the importance of solicitor/client privilege in the
administration of justice could not be over emphasised. He correctly regarded
it as fundamental to the interests of justice. He then considered the claim of
privilege asserted by the applicant by reference to
Bursill
v Tanner
[1885] 16 QB 1 which he believed decided that the name of a client was not a
matter that comes within the remit of legal professional privilege. He also
considered
Pascall
-v- Galinski
[1970] QB 38 where a solicitor had been given strict instructions from his
client not to disclose his name. He cited from the House of Lords decision to
the effect that
“this
firm of solicitors.... were not entitled to say, we were acting on behalf of a
lessee, and to refuse to give his name. It was their duty, not only to the
court but also to the lessor and all concerned, to give the name of the lessee.
If Mr. Gale (the solicitor) was subpoenaed as a witness and asked to give the
name of his client, then, if the name was relevant to the proceedings, he could
be compelled to give it. He could not assert the client’s privilege to
protect him from that disclosure.
Bursill
-v- Tanner
is clear on the point”
.
52. He
also considered
Parkhurst
-v- Loughton
(1818) Ch. 2 Swanston, 194 and variety of other cases before concluding that
“it
is necessarily the case that the entitlement to solicitor client privilege
cannot be claimed in respect of the names of those from whom Mr. Miley received
instructions concerning Jackson Way Properties Limited”.
THE
APPLICANTS EVIDENCE BEFORE THE RESPONDENT
53. At
this juncture it is appropriate to summarise the evidence given by the
applicant to the respondent in support of the refusal to provide the
information sought.
54. The
applicant asserted that the identity of the persons who gave him instructions
was confidential and that he had been given specific directions not to breach
privilege.
55. There
may well have been a confusion in his mind as to these two concepts.
56. Even
the most confidential information given to a solicitor will not attract legal
professional privilege unless it comes within the
Smurfit
Paribas
rubric. In this regard a solicitor is in no different position to other
persons who may be the recipients of confidential information. For example, no
privilege attaches to confidential information given to a medical practitioner;
neither is the source of information given in confidence to a journalist
privileged. Confidentially of information does not of itself create a
privilege from disclosure. But such information given to a lawyer will be
privileged from disclosure if the conditions specified in
Smurfit
Paribas
are met.
57. There
is no Irish authority which deals specifically with the question of
‘client identity privilege’. I will therefore examine a number of
foreign authorities referred to in order to see if they provide any assistance.
I also do so in deference to the lengthy arguments made by reference to them.
As I have already indicated however they are of limited help given the binding
authority of the
Smurfit
Paribas
decision.
ENGLAND
58. In
the course of the written submissions from the Law Society from which I have
already quoted they cite from Passmores Law of Privilege [1998] at page 37. It
is from that work that the elements of advice privilege are reproduced under
four separate subheadings in their written submission. In fact the quotation
is slightly inaccurate in that paragraph four ought to have read
“made
for the dominant purpose of enabling the client to seek or the lawyer to give
legal advice or assistance”
.
The word ‘
advice’
was unintentionally omitted from the quotation. It is immediately apparent
from this quotation that it does not represent the law of this jurisdiction.
Privilege in this country cannot be claimed in respect of information passing
for the purposes of securing legal assistance. Consequently the notion of
legal professional privilege is more confined in this jurisdiction. It follows
that the decisions of the English Courts in
Balabel
and
Nederlandse
are not decided on principles which are
ad
idem
with the law in this jurisdiction. Indeed it is interesting to note that
Balabel’s
case was one of those cited to the Supreme Court in the
Smurfit
Paribas
case and it would appear that the Supreme Court did not adopt the principles
stated therein.
59. The
law in relation to legal professional privilege is more narrowly confined in
this jurisdiction than in England since it does not extend to information
passing for the purposes of securing assistance.
60. Having
said that it is then interesting to note that none of the English decisions
cited either by the applicant or by the Law Society took the view that the
identity of a solicitors client was a matter in respect of which privilege
could be claimed.
61. Whilst
the English cases are all different on their facts the rationale for the
decisions appears to derive from a number distinct though related reasons.
In
ex-parte
Campbell
: Re Cathcart [1870] LR5 Ch 703 at 705 James L J said:-
“What
a solicitor is privileged from disclosing is that communicated to him sub
sigillo confessionis- that is to say, some fact which the client communicates
to the solicitor for the purpose of obtaining the solicitor’s
professional advice and assistance; the principle being, that such
communications ought to be privileged, because otherwise a man would be
deterred from fully disclosing his case, so as to obtain proper professional
aid in a matter in which he is likely to be thrown into litigation. But a
solicitor’s knowledge of his client’s residence, even though he
knows it simply in consequence of the professional business in which he has
been acting for him, is not on that ground alone a matter of confession, so as
to be in the nature of a privileged or confidential communication....... The
clients place of residence in such a case is a mere collateral fact, which the
solicitor knows without anything like professional confidence; and therefore
the mere statement, “The place of residence of my client came to my
knowledge in my professional capacity, and only in consequence of my employment
as his solicitor” ,is not, to my mind, nearly enough to warrant the
solicitor in refusing to answer the question as to where his client is
residing. If, indeed, the gentleman’s residence had been concealed; if
he was in hiding for some reason or other, and the solicitor had said, “I
only know my client’s residence because he had communicated it to me
confidentially, as his solicitor, for the purpose of being advised by me, and
he has not communicated it to the rest of the world,” then the
client’s residence would have been a matter of professional confidence;
but the mere statement by the solicitor, that he knows the residence only in
consequence of his professional employment, is not sufficient.
If
a client’s residence is a mere collateral fact then it seems to me that a
clients identity cannot be anything other than a collateral fact. Secondly, in
Bursill
-v-Tanner
[1885] 16 QBD 1 at 5 Cotton L J said.
“It
is not everything that solicitors learn in the course of their dealings with
clients that is privileged from disclosure. This matter was much discussed in
the case of
Lyell
-v- Kennedy
23 Ch.D. 387. The privilege extends only to confidential communications. It
is not necessary for me to go through all the cases that have been decided on
the question of what constitutes a confidential communication. In my opinion,
the names of the trustees did not constitute such a communication. The mere
fact who the trustees are cannot be said to be a matter communicated to the
solicitor confidentially for the purpose of obtaining his professional advice,
or at any rate, it is highly improbable that it should be so. There is also
another ground for compelling the disclosure of their names. The solicitor
claims this privilege as that of his client. He must then state the names of
persons for whom he claims the privilege”.
62. This
decision makes it clear that the name of the client will never be communicated
for the purpose of obtaining the solicitors advice save in the truly
exceptional circumstance in which the client is seeking to determine whether he
will seek advice from the solicitor. Furthermore in order to maintain the
privilege the solicitor has to state whose privilege it is and this involves
naming the client. In the present case the request is to identify the persons
who provided instructions but that does not appear to me to alter the question
of principle.
63. In
the most recent authority cited from England by the Law Society namely the
decision of Harman J in
International
Credit and Investment Company (Overseas) Ltd. -v- Adham
The Times 10th February 1997, it is suggested that the judge recognised that
any derogation from legal professional privilege even as regards the identity
of the client should only occur in the most exceptional of circumstances. Even
in the rather unsatisfactory way in which the case is reported it seems to me
that the observations in question were directed more to the procedural method
of requiring a solicitor to provide information on foot of a motion rather than
to deal with the question of principle.
64. It
is clear that all of the English authorities, decided in circumstances where
legal professional privilege has wider parameters than in this jurisdiction,
are unanimously against the proposition of the applicant. Indeed there appears
to be only one single academic authority in his favour namely an article by Mr.
Morrick entitled ‘Professional Privilege:
the
Client’s Identity’ (1980) 124 Sol. J. 303. A reading of that
article shows that both the English Law Society, the editors of Phipps upon
Evidence and the editors of Corderry on Solicitors all operated on the basis
that no such
privilege
exists. Insofar as the author suggested an exception arising where “the
clients identity would.... be incriminating information” it was one based
upon American authority, was contrary to the existing English authorities and
furthermore has no basis remotely close to this case.
65. I
have therefore come to the conclusion that none of the English authorities
cited support the proposition put to the court by the applicant on the facts of
this case.
SCOTLAND
66. Much
attention was given to the Scottish case of
Conoco
(U.K.) Limited -v- The Commercial Law Practice
[1997] SLT 372. From my reading of the decision of Lord MacFadyen, it appears
that the observations made by him in the course of his judgment were made
obiter
because a direction was given that the information should, possible privilege
notwithstanding, be disclosed. Whilst that judge rejected any rule which holds
that the identity of the client will not normally be privileged it is important
to bear a number of things in mind. First, the case was again decided in a
legal
milieu
where the law on privilege is quite different to that which obtains in this
jurisdiction. Scots law in relation to the scope and content of the rules
relating to legal professional privilege appear as far as I can ascertain to be
very different indeed to the law in this jurisdiction. For example counsel at
page 376 of the report is quoted as having urged the following proposition
which appears to have been accepted by the court
“Except
within the scope of a recognised exemption, the principle applies to all facts
communicated between solicitor and client, including (since there is no
Scottish authority to the contrary) the identity of the client. The identity
of the client, it is submitted, is no different from any other matter
communicated by the client to the solicitor within the relationship of
solicitor and client”.
67. That
is not the law in Ireland. Indeed the difference between Scots law and Irish
law appears to be more fundamental. In Walker and Walker, Law of Evidence in
Scotland there appears to exist a concept of privilege under that law which in
fact is known simply as confidentiality
.
68. In
any event in the
Conoco
case the view was taken that the identity of the client was
“a
component of the total information”
which was communicated by the client to the solicitor (see page 378). This
therefore enjoyed the benefit of the privilege. It follows therefore that the
issue appears to have arisen in a context where a solicitor had written to the
plaintiff advising it that a third party had information concerning a fraud
which had been committed on the plaintiff in circumstances in which the third
party had directed that his identity was not to be revealed. It is difficult
to see how, under Irish law, privilege could be claimed in such circumstances
at all.
69. I
am therefore of the view that the law in Scotland is so radically different on
this topic to either the law of England or the law of this jurisdiction that it
is not safe to regard the Scots case as authority for any proposition
supportive of the applicant in these proceedings.
AUSTRALIA
70. All
of the Australian cases cited particularly by the Law Society have to be looked
at in the context of a legal regime different to ours on the topic of legal
professional privilege. In
R-v-
Bell; Ex-parte Lees
[1980] 146 CLR 141 Gibbs J explained the general principle applicable in that
jurisdiction as follows:-
“It
is a well settled principle, based on public policy, that communications made
confidentially between a client and his legal advisor for the purpose of
obtaining or giving legal advise or assistance are privileged from
disclosure”.
71. Even
in this different (and broader from the point of view of privilege) legal
atmosphere three of the four cases cited affirmed the principle that the
identity of the client could not be the subject of a claim of privilege. The
most significant of these cases is undoubtedly the decision of the High Court
of Australia in
R
-v- Bell
.
That case was concerned with the address of a client. In the course of his
judgment in that case Stephen J said at page 155
“Where,
as here, it is a clients address for which privilege is claimed special
considerations may sometimes arise. In a number of cases it has been said that
the identity of a client is not something to which the privilege applies, and
this because the litigant is entitled to know who in truth is his opponent,
“who is the real defendant””
Levy
-v- Pope
173 E.R. 1206 per Parke J and see
Gillard -v- Bates,
151
E.R. 529 (1885)
16 Q.B.D. 1
Bursill
-v- Tanner,
and
Cook
-v- Leonard
[1954] V.L.R. 591.
There
may be cases in which knowledge of an opponent’s address is an element
essential to any real knowledge of his identity. In such cases it would seem
right that privilege should not attach. On the other hand, if the likelihood
of disclosure of a person’s address would operate as a real deterrent
from his seeking professional advice, this would suggest that the privilege
should apply, as James L J observed in
Ex-parte
Campbell
.
Each of these considerations reflect different aspects of public policy.
There are, no doubt, other such aspects which may emerge in particular
cases”.
72. In
this passage, the judge does not appear to me to cast any doubt upon the
proposition that privilege in respect of the identity of a client does not
normally apply.
In
Southern Cross Commodities Pty Ltd. (in liquidation) -v- Crinis
(1984) VR 697, there is a lengthy analysis of the case law carried out. Whilst
Mr. Morrick’s article is referred to by Young C.J., that judge says:
“...the
author contends that there are occasions when a solicitor may refuse to
disclose a client’s identity although he concedes that there is a dearth
of authority on the point”.
73. Having
set forth the authors conclusion the judge says
“It
is unnecessary for me to examine the authors contentions or to pronounce upon
the conclusion so expressed, for the requisites are not, in any event,
satisfied in the present case”.
74. The
most recent Australian authority drawn to my attention is that of
Federal
Commissioner of Taxation -v- Coombs
(1999) 164 ALR 131 [1999] FCA 842. The Court said (at paragraph 31) as follows
“The
following propositions, amongst others, can be distilled from the cases we have
examined:
Privilege
attaches to communications, and not to facts which a lawyer observes while
acting in the course of a retainer
Privilege
does not attach to everything a client says to the lawyer, but only to
communications made by the client for the purpose of obtaining the lawyers
professional assistance. It does not attach to “mere collateral
facts”. The address and identity of a client will usually be
“collateral facts”.
Privilege
attaches to communications only if they are confidential. In almost all cases
the clients name and address will not have been communicated confidentially.
Instructions
to a lawyer to do a particular thing, for example to prepare a legal document
such as a will, are generally not privileged, because instructions to do
something do not necessarily amount to a request for advice.
As
a general rule, the identity of a client will not be privileged as the
privilege belongs to the client, and the retainer between the lawyer and the
client must be demonstrated in order to establish the privilege. This requires
disclosure of the clients identity.
Disclosure
of the client’s identity is necessary before the privilege could arise
even if the client’s name was given in confidence, and it was a condition
of the lawyer’s retainer that the clients identity be kept confidential.
The client cannot by contract extend the area of privilege.
Some
of the cases support an exception to this general rule when so much of the
actual communication has already been disclosed that the identification of the
client amounts to disclosure of a confidential communication. This will be the
case when the clients identity is so intertwined with the confidential
communication that to disclose the identity would be to disclose the
communication”
75. These
cases suggest to me that in Australia the circumstances in which the courts of
that jurisdiction will uphold privilege as to the identity of a client are very
limited and will arise where to disclose it would operate as a deterrent to
seeking professional advice or amount to a disclosure of the advice itself.
These circumstances must be very limited and indeed have nothing in common with
the present case.
NEW
ZEALAND
76. The
Law Society in its submission accepts that the decision which it drew to my
attention from this jurisdiction namely
Police
-v- Mills
(1993) 2 NZLR 592 was heavily influenced by Mr. Morricks article to which I
have already made reference. As I have already pointed out that article
(unsupported by any particular authority) suggests that a common law right to
privilege might arise where the client was not a party in litigation and where
the client was either acting in the public interest or his identity would be
incriminating information. Neither of those circumstances have any application
here, but it is interesting to note that Blanchard J., whilst prepared to
accept the statement of the law as contained in Mr. Morricks article ultimately
found in favour of the existence of a discretion to uphold confidentiality in
public interest cases or cases of possible incrimination (vide page 600). That
determination does not appear to me to be consistent with a claim of strict
privilege which is what is contended for in the present case.
CANADA
77. The
first of the Canadian cases cited namely
Re
United States of America -v- Mammoth Oil Company
(1925) 2DLR 966 contains the following statement from the judgment of Hodgins J
A. He said at p. 970
“As
to the name of the client, I am quite unable to see that a solicitor and his
client can make that confidential which is not so in fact. The appellant
admits that his client was known to him before he was consulted by him. That
client’s name, therefore, was a fact of which he acquired knowledge
before professional relations began and not as a part thereof. The solicitor
and client cannot make a convention by which what is already known to the
solicitor will form part of the confidential matters between them, if in fact
that is not so. To permit this would extend the privilege far beyond what has
hitherto been recognised in our Courts.
Bursill
-v- Tanner
(1885) 16QBD 1”
78. The
judgment of Ferguson J A in that case does not appear to me to be of any great
assistance since the example cited namely a circumstance in which counsel might
be permitted not to identify his client where he had attended an inquest on his
behalf arising from an accident in which the client was involved is not apt to
the question at issue here.
In
Re Ontario Securities Commission
(1983) 146DLR (3d) 73 the Ontario High Court stated
“The
general
rule
is that whenever a solicitor asserts that a communication is protected by the
solicitor and client privilege, he cannot refuse to identify the client on
whose behalf the privilege is asserted, because the identity of his client is
not the subject of professional confidence... A solicitor cannot withhold as
privileged the name of a client on whose behalf he receives, pays, or holds
money if the identity of the person paying, receiving, or holding such money
becomes relevant in legal proceedings. The same rule applies... whenever a
solicitor does any act on behalf of a client and it becomes relevant in legal
proceedings to determine on whose behalf the act was done. The doing of an act
does not fall within the ambit of the privilege because it is not a
communication at all.
I
am not prepared to go so far as to say that circumstances can never arise in
which a solicitor being examined in legal proceedings would be justified in
refusing to disclose the name of a client, or former client. It suffices to
say that none of the questions before the commission that were the subject of
argument before us arose out of circumstances which would justify the
withholding by the solicitor or former solicitor of the names of his
clients.”
THE
UNITED STATES OF AMERICA
In
Ralls
-v- United States of America
(1995) 52f 3d 223 the United States Court of Appeals for the 9th Circuit
explained what it described as a narrow exception to the general rule of
disclosure as arising in circumstances where “an attorney may invoke the
privilege to protect the identity of a client or information regarding a
clients fee arrangements if disclosure would convey information which
ordinarily would be conceded to be part of the usual privileged communication
between attorney and client”. It made it clear that the party asserting
the attorney/client privilege has the burden of establishing the relationship
and the privileged nature of the communication. The Court of Appeals for the
United States placed this exception in the context of a further principle
namely “because it is a derogation of the search for the truth, the
privilege is narrowly construed”.
79. It
would seem therefore that even in the United States of America where the legal
position is substantially different to that which obtains in this jurisdiction,
a person in the position of the Applicant would have to assume the burden of
establishing the identity of his client was a matter the disclosure of which
would convey information which would ordinarily be part of the privilege. This
must be an extraordinarily unusual circumstance and certainly far removed from
the facts of this case.
CONCLUSION
80. Having
considered all of these authorities, I have come to the conclusion that the
applicant is 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 the company. Any such claim of privilege would be inconsistent
with the views of the Supreme Court in the
Smurfit
Paribas
case which are binding upon me.
81. Even
in England where a wider form of legal privilege exists the position would, on
the basis of the English authorities, be no different.
82. In
the foreign jurisdictions where the law of privilege is not the same as in this
jurisdiction, there is nonetheless a strong body of legal authority reaffirming
the general principle that a solicitor is not entitled to maintain a claim to
privilege in respect of the identity of his client.
83. A
dilution of this general principle arises where (a) the naming of the client
would incriminate or (b) where the identity of the client is so bound up with
the nature of the advice sought, that to reveal the clients identity would be
in fact to reveal that advice. There is no evidence whatsoever to suggest that
the naming of these persons by the applicant would incriminate them, nor is
there any evidence that the identity of these persons is so bound up with the
nature of the advice sought that to reveal the identity would be in fact to
reveal the advice. Consequently even if this exception to the general
principle were to apply it would have no bearing upon the instant case.
84. In
these circumstances the applicant is not entitled to the declaration which he
seeks and it is refused. The respondent was in my view entitled to require of
him the disclosure of the identity of the persons who furnished him with
instructions on behalf of the company and he must now furnish that information
to the respondent.
85. This
application is dismissed.
DD310J.R.
© 2001 Irish High Court