Miley v Flood (no 1)

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date24 January 2001
Neutral Citation[2001] IEHC 9
Docket Number[2000 No. 310 J.R.]
Date24 January 2001
MILEY v FLOOD (PLANNING TRIBUNAL) & LAW SOCIETY OF IRELAND
Judicial Review

BETWEEN

STEPHEN MILEY
APPLICANT

AND

MR JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THETRIBUNAL
OF ENQUIRY INTO CERTAIN PLANNING MATTERS ANDPAYMENTS
RESPONDENT

AND

LAW SOCIETY OF IRELAND
NOTICE PARTY

[2001] IEHC 9

No. 310 JR/2000

THE HIGH COURT

Synopsis:

PROFESSIONS

Solicitors

Legal professional privilege - Confidentiality - Flood Tribunal - Whether solicitor obliged to reveal names of clients to Flood Tribunal (2000/310JR - Kelly J - 24/1/01) [2001] 2 IR 50; [2001] 1ILRM 489

Miley v Flood Tribunal

The applicant had been ordered to reveal the names of his clients to the Flood Tribunal. The applicant claimed privilege in respect of the information and challenged the decision in the High Court. Kelly J rejected the applicant's challenge and upheld the Tribunal's decision that the applicant furnish the names in question.

Citations

LAWLOR V FLOOD UNREP KEARNS 2.7.1999 1999/15/4583

NATIONAL IRISH BANK (UNDER INVESTIGATION), IN RE 1999 3 IR 145 1999 1 ILRM 321

NATIONAL IRISH BANK (UNDER INVESTIGATION), IN RE 1999 3 IR 190 1999 2 ILRM 443

HAUGHEY, IN RE 1971 IR 217

CHESTVALE PROPERTIES LTD V GLACKEN 1993 3 IR 35

PERGAMON PRESS LTD, IN RE 1971 CH 388

MAXWELL V DEPARTMENT OF TRADE & INDUSTRY 1974 2 AER 122

DUNCAN V GOVERNOR OF PORTLAOISE PRISON 1997 2 ILRM 296

R V DERBY MAGISTRATES COURT EX-PARTE B 1996 1 AC 487

DUNCAN V GOVERNOR OF PORTLAOISE PRISON UNREP SUPREME KELLY (EX TEMP) 5.3.1997 (NOT AVAILABLE)

DESCOTEAUX V MIERZWINKSI 1982 141 DLR 3d 590

ESSO AUSTRALIA RESOURCES LTD V DAWSON 1999 FCA 363

SWIDER V UNITED STATES 1998 141 L ed 2d 379

NIEMITEZ V GERMANY 1992 16 EHRR 97

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

SMURFIT PARIBAS BANK LTD V AAB EXPORT FINANCE LTD 1990 1 IR 469

PASSMORE ON PRIVILEGE 1998 37

BALABEL V AIR INDIA 1988 1 CH 317

NEDERLANDSE REASSURANTIE GROUP HOLDING NV V BACON & WOODROW 1995 1 AER 976

BURSILL V TANNER 1885 16 QB 1

PASCALL V GALINSKI 1970 QB 38

PARKHURST V LOUGHTON 1818 CH 2 SWAN 194

CATHCART, IN RE EX-PARTE CAMPDELL 1870 LR5 CH APP 703

LYELL V KENNEDY 23 CHD 387

INTERNATIONAL CREDIT & INVESTMENT COMPANY LTD V ADHAM TLR 10.2.1997

MORRICK "PROFESSIONAL PRIVILEGE: THE CLIENT'S IDENTITY" 1980 124 SOL J 303

CONOCO (UK) LTD V COMMERCIAL LAW PRACTICE 1997 SLT 372

WALKER & WALKER LAW OF EVIDENCE IN SCOTLAND

R V BELL EX-PARTE LEES 1980 146 CLR 141

LEVY V POPE 173 ER 1206

GILLARD V BATES 151 ER 529 16 QBD 1

SOUTHERN CROSS COMMODITIES PTY LTD (IN LIQUIDATION) V CRINIS 1984 VR 697

FEDERAL COMMISSIONER OF TAXATION V COOMBS 1999 164 ALR 131, 1999 FCA 842

POLICE V MILLS 1993 2 NZLR 592

UNITED STATES OF AMERICA V MAMMOTH OIL CO, IN RE 1925 2 DLR 966

ONTARIO SECURITIES COMMISSION, IN RE 146 DLR 3d 73

RALLS V UNITED STATES OF AMERICA 1995 52f 3d 223

1

Judgment of Mr. Justice Kellydelivered the 24th day of January, 2001

THE APPLICANT
2

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
3

The respondent was established by an instrument executed by the Minister for the Environment and Local Government on the 4th of November, 1997, which wassubsequently 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".

4

The terms of reference inter alias 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
5

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.

6

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 isaware 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 beenrezoned.

7

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 VirginIslands.

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 PropertiesLimited.

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 andthat 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 thisinformation.

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...

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