The solicitor for Jackson Way Properties, which allegedly paid money to secure rezoning of its land, must tell the tribunal the identities of his clients, Mr Justice Flood ruled yesterday.
He said the identities would allow the tribunal to carry out its function under the terms of reference, which state that it is to report on corrupt actions associated with the planning process.
Mr Stephen Miley, solicitor for Jackson Way Properties, has on a number of occasions refused to tell the tribunal the identities of those who have instructed him. He said he was bound by his duty to protect the solicitor-client relationship.
On Tuesday, the tribunal heard that an elaborate effort was made to hide the identity of the beneficial owners of Jackson Way Properties.
While Mr Justice Flood said he did not wish to see privilege broken, he did not regard the names of clients as privileged information. "The rule is clear; a solicitor claiming privilege on behalf of his client must disclose the client's name," he said. "Without such identification, how can a tribunal or court be sure that a client, in respect of whom privilege is claimed, actually exists?"
If a criminal or fraudulent intent by his client was established, the privilege Mr Miley also claimed over all the documents handed into the tribunal relating to his client, and which had not been examined, would be taken away, Mr Justice Flood said.
He added: "It must also be the case that solicitor-client privilege could not attach to every single document contained in the files produced to the tribunal. It is certain to be the case that some of the documents contained in those files could not be deemed to derive from the obtaining of legal advice."
He said the original documents would be returned to Mr Miley after the tribunal had made copies. He asked Mr Miley for an affidavit of discovery setting out which of the documents he claimed privilege over.
Mr Justice Flood said he had received information suggesting money was paid by or on behalf of Jackson Way Properties and perhaps its predecessor, Paisley Park, to secure rezoning of lands in Carrickmines.
"In my opinion it is neither necessary nor desirable for me at this stage to set out in detail the full extent of the information which has come into my possession concerning the matter . . . I believe the provision of such further information may undermine the tribunal's work," he said.
Counsel for Mr Miley asked if he could copy the documents, rather than the tribunal staff. Mr Justice Flood said he took offence at the idea that the documents would not be treated confidentially. "In all preliminary inquiries all documents are confidential. If a conclusion is not reached the documents will be returned," he said.
The tribunal was adjourned until June 21st.