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Cite as: [2001] 1 ILRM 489, [2001] 2 IR 50, [2001] IEHC 9

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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.