Special Committee Companies Bill, 1962 debate -
Tuesday, 9 Apr 1963

SECTION 299.

Question proposed : " That Section 299 stand part of the Bill."

Mr. Cosgrave

This section and an earlier section, I think it was Section 245, along with a subsequent section, Section 388, deals with the question of privilege. Section 245 enables the court to summon before it any person known or thought to have any property of the company or capable of giving any information and to examine him on oath and to compel him to produce books, papers, etc. This section enables the Attorney General to institute proceedings and an agent of the company which in this context includes a solicitor, is bound to give all assistance in connection with the prosecution. Section 388 provides that where proceedings are instituted under this Act against any person, nothing in the Act shall be taken to require any person who has acted as solicitor for the defendant to disclose any privileged communication. This section appears to be similar to Section 446 of the English Companies Act, 1948. That section is limited to criminal proceedings. In this case is it clear that a solicitor would be exempted from the requirement of disclosing which might incriminate a person for whom he acted? Subsection (4) of this section states that:

For the purposes of this subsection, " agent " in relation to a company shall be deemed to include any banker or solicitor of the company and any person employed by the company as auditor, whether that person is or is not an officer of the company.

It might be well to consider whether there should be an amendment either to this section or to Section 388 which would be to the effect that nothing in the Act would be taken to require any person who has acted as solicitor to disclose any privileged communication. I know that there is a saver in Section 173 for solicitors but whether it is adequate or not I do not know.

Mr. J. Lynch

That is in the case of inspectors.

Mr. D. Costello

That only applies to the " foregoing ".

Mr. J. Lynch

It is clear that Section 173 would not cover Section 299.

Mr. Cosgrave

If that is so, an amendment should be considered either for this section or Section 388.

Mr. J. Lynch

It would be better to consider it in connection with Section 388 which as it stands, I agree, does not provide for solicitors in their own capacity.

Mr. D. Costello

Does this differ from the English Act? It is an extension of Section 217 of our Act.

Mr. J. Lynch

: Yes, it is.

Mr. D. Costello

Is the extension similar to the English one?

Mr. J. Lynch

Yes.

Mr. Cosgrave

It expressly limits it to criminal proceedings and there does not seem to be any limit here.

Mr. D. Costello

There is a curious conflict between Section 299 and Section 388. Section 299 requires a solicitor to give all assistance which he is reasonably able to give, in connection with the prosecution, and Section 388 provides that when proceedings are instituted under this Act, nothing in the Act shall be taken to require any person who has acted as solicitor to disclose any privileged communication.

Mr. J. Lynch

That section says " solicitor for the defendant ". That is why Section 388 will have to be looked at again, to consider the situation relating to privileged communications to solicitors other than those acting for the defendant.

Mr. D. Costello

Is it intended to give power to the Attorney General to require a solicitor who has acted for a person against whom criminal proceedings may be instituted to disclose privileged communications from that person?

Mr. J. Lynch

No, it is not intended.

Chairman

It appears to be the effect of it, though.

Major de Valera

There is a tendency to make inroads on the relationship between solicitors and clients.

Mr. J. Lynch

In this Bill?

Major de Valera

Yes.

Mr. J. Lynch

No, it is not the intention.

Major de Valera

But we had it in another section and I think it is something to be guarded against. I completely sympathise with the Minister in what he is trying to secure for the purposes of this Bill but there is a larger public interest in this. We should be very careful about any inroads on the relationship of solicitor and client because it is the poor man's and the ordinary man's protection. Without knowledge of the law, the ordinary man is at the mercy of all the things in this Bill and in others as well that we want to protect him from. His only protection is a solicitor. I would strongly urge, in principle, without the detail here, that we should be careful to make no inroads on that relationship.

Mr. J. Lynch

The intention was to respect the special relationship of disclosures between solicitor and client. In so far as Section 388 and other sections fall short of this principle, I will reconsider them.

Major de Valera

I know the Minister will.

Mr. Cosgrave

In that connection would the Minister reconsider this section as well ? I think this section goes in a way even further than Section 388. That refers to where the solicitor acts as defendant. In this section, as I read it, he may be acting in any way for the company.

Mr. Norton

What was it intended that the solicitor should do in a case like this ? Was it intended that the solicitor for a company could be brought into court in the ordinary way and that any communication between himself and his company could be made a matter of disclosure there ? Is that what is intended by subsection (4)?

Chairman

I think it goes further, that it provides that he is to give all reasonable assistance to the prosecution, not just to the court.

Mr. Norton

That is what I say. Do we take it as giving evidence for the prosecution, as putting evidence before the court for judgment by the judge ?

Chairman

It is even worse.

Mr. Norton

Is that what is intended here ?

Mr. J. Lynch

I do not like to mention specific cases, even one that has occurred in Britain, but there was one in recent years which members of the Committee will remember. There was a solicitor involved there in a very big way and he was handling the whole business more as an agent rather than a solicitor pure and simple. It was right and proper that he should be asked to give a full account of what he was doing.

Major de Valera

In that case he was the person who was under the microscope ; he was the accused.

Mr. Gallagher

In a matter of the ordinary relationship between solicitor and client, where a man goes to a solicitor and in order to get the best possible advice from him discloses the truth to him, under this section the solicitor can actually be forced to say what happened and it will destroy the trust and relationship that has existed for the ordinary man.

Mr. J. Lynch

There is a qualification in this—the officer of the company or agent of the company, which a solicitor often is, is required to give all assistance which he is reasonably able to give.

Mr. Booth

Is what is meant by that the evidence which he may be reasonably asked to give?

Mr. J. Lynch

Of course, reasonably able and reasonably asked to give are too different things but the intention is that it should not conflict with the principle of Section 388.

Chairman

The Minister is prepared to have another look at it.

Mr. D. Costello

I think we should make it explicit in Section 299 and not just leave it as a matter of amending Section 388. If it is the intention that privileged communications are not the subject of disclosure and assistance under this section then we should say so. The point has been raised here about somebody in trouble who comes to his solicitor and says, " I am in this mess. What can I do ?" and the solicitor tells him, " The best thing to do is this and this " and then subsequently there are criminal proceedings instituted and presumably that solicitor would be a witness who could be called to say that the defendant had admitted these offences to him.

Major de Valera

Deputy Costello has put his finger on the whole difficulty in this, whether it is civil or criminal. A man may be in trouble under this Bill or indeed any Act and he may want advice. He may have been guilty of a crime but the intention up to a point may have been excusable. He wants advice. He wants the common help of a defence. If he goes to a solicitor, as the law stands at the moment, he can be completely frank with the solicitor and gets the best advice. If he is completely frank and says, "I did such and such," the solicitor doing his job rightly will say, "Plead guilty" and will do the best for him. There are border line cases or, if the story is otherwise, where the solicitor will defend him. That whole situation, to my mind, seems to be put in jeopardy by provisions that make any inroad at all on the privileged communications of solicitor and client.

Mr. J. Lynch

If that person has defrauded the company he is not likely to go to the company's solicitor.

Mr. Norton

The person that Deputy de Valera talked about could not be brought into court at all. He is not an agent of the company.

Major de Valera

I apologise to the Minister. In this section the solicitor that is involved is the solicitor of the company. I make the point as regards solicitor and client anyway. The solicitor of the company and the directors are in a peculiar relationship there. Take the section that we were arguing about. Supposing the case referred to by Deputy Booth was the question at issue and the directors consult the solicitor as to the crime they have committed. Surely that should be a privileged communication?

Mr. J. Lynch

If a director is a defendant then it is privileged.

Major de Valera

If they are prospective defendants, it is privileged ?

Mr. J. Lynch

Yes, because Section 388 refers to a solicitor who has acted for a defendant, which does not necessarily mean that he is now acting for the defendant in respect of the offence with which he is charged but, having formerly acted for the defendant in a solicitor-client capacity then any communications made in the course of such consultation would be privileged.

Major de Valera

Would not that be locking the stable door when the horse is gone ? Before he is charged or anything, this section operates the disclosure, then the material is got and then the charge is made. Where is the inroad in that case ? I should like to make a general plea for privilege.

Mr. J. Lynch

I am merely answering points as they are raised. What I said covers the whole debate, that I shall look into it.

Major de Valera

And I should like to make a strong plea on the principle to the Minister and I know the Minister will consider it—the overriding principle of privilege of solicitor and client, everything else notwithstanding.

Mr. Cosgrave

The Minister will look into it vis-a-vis this section independent of Section 388 ?

Mr. J. Lynch

I shall, certainly.

Question put and agreed to.