Billionaire businessman John Magnier claimed that one of his “long-standing and valued advisers” could be guilty of a criminal offence, a Commercial Court judge has ruled.
Mr Magnier has claimed legal privilege over 10 documents provided to him by Eugene McCague, a former partner in Arthur Cox.
In a 26-page judgment, Mr Justice Michael Twomey said Mr Magnier was implicating Mr McCague in a potential criminal offence by claiming legal privilege over documents related to the sale of the Barne Estate in Co Tipperary.
Mr Twomey said the implications of Mr Magnier’s claim of legal privilege were twofold.
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Mr McCague did not have a solicitor’s certificate when he gave legal advice to Mr Magnier in which case his adviser was potentially committing a criminal offence.
If Mr McCague was not acting as his legal adviser and just as an adviser, the documents would not be covered under legal privilege and should be disclosed in court.
“Mr Magnier’s application therefore, to avoid disclosing documents, which he must believe will weaken his case (since why else would he not want them disclosed) goes to the very heart of the administration of justice,” the judge stated.
“Yet he wants this Court to decide his application based on unsubstantiated claims rather that evidence.”
The documents relate to the purchase of the Barne Estate in Co Tipperary. Mr Magnier claims that he reached a deal with the estate’s owner Richard Thomson-Moore in August last year to buy the estate for €15 million.
Barne Estate is held for the benefit of Richard Thomson-Moore, his sister Alexandra, their children, and their spouses by a Jersey trust.
However, Mr Thomson-Moore alleges no enforceable sale took place and that his family subsequently struck a deal to sell the estate to the New York-based Irish construction magnate Maurice Regan for €22.5 million.
Mr Magnier and his children, John Paul Magnier and Kate Wachman, have brought proceedings against the Barne Estate, Mr Thomson-Moore and three companies of IQEQ (Jersey) Ltd..
Both sides are claiming privilege over thousands of documents related to the case. Among them are 10 documents related to Mr Magnier’s correspondence with Mr McCague.
Mr Magnier claimed that Mr McCague had given him legal advice relating to the Barne Estate. In doing so he believed that Mr McCague still held a solicitor’s practising certificate.
Mr Justice Twomey said it is a criminal offence under Section 55 of the Solicitors Act 1954 to practice law without a certificate. It is also an offence for somebody to claim to be acting as a solicitor without a practising certificate.
While Mr Magnier was not claiming that Mr McCague had done anything illegal, “he is, in effect claiming that Mr McCague could have committed a legal offence”, the judge said.
“Indeed it seems clear to this court that Mr Magnier is well aware that he is making a very serious claim about his own adviser in order not to have to disclose the documents to the defendant.
“In other words, Mr Magnier is prepared to make a serious claim, in effect that a criminal offence might have been committed, in order to prevent the documents being disclosed.”
The judge accused Mr Magnier of providing sworn evidence when it suited him. Yet he failed to provide sworn direct evidence that he believed Mr McCague had a practising certificate when he advised him over the Barne sale.
Mr Magnier could have asked the court to decide if the documents provided by Mr McCague amounted to legal advice, but he had not done so, the judge said.
It was a “novel claim”, the judge said, if Mr Magnier was claiming legal privilege over documents that were not provided to him by a practising solicitor.
In an interim judgment Mr Justice Twomey ruled that the documents in question must be disclosed to the defence as they are not covered by legal privilege.
He adjourned the case until 10.30am on November 12th.
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