Chestvale Properties Ltd v Glackin

JurisdictionIreland
JudgeMr. Justice Murphy
Judgment Date01 January 1993
Neutral Citation[1992] IEHC 2
CourtHigh Court
Docket NumberNo. 235 J.R./1991,[1991 235 J.R.]
Date01 January 1993
CHESTVALE PROPERTIES LTD v. GLACKIN
Judicial Review

BETWEEN

CHESTVALE PROPERTIES LIMITED AND HODDLE INVESTMENTS LIMITED
APPLICANTS
.V.
JOHN A. GLACKIN
RESPONDENT

AND

ANSBACHER BANKERS LIMITED
FIRST NAMED NOTICE PARTY

AND

NOEL SMYTH AND PARTNERS
SECOND NAMED NOTICE PARTY

AND

THE ATTORNEY GENERAL
THIRD NAMED NOTICE PARTY

[1992] IEHC 2

No. 235 J.R./1991

THE HIGH COURT

Synopsis:

COMPANY

Inspector

Powers - Membership - Investigation - Scope - Documents - Production - Privilege - Alleged bias of inspector - Demands of inspector - Judicial review - Premature application - Statute - Interpretation - Retrospective effect - Constitution - Personal rights - Protection for property rights invoked by body corporate - Companies Act, 1990, ss. 9, 10, 14, 23 - Constitution of Ireland, 1937, Articles 40, 43 - (1991/235 JR - Murphy J. - 7/2/92) - [1993] 3 I.R. 35 - [1992] ILRM 221

|Chestvale Properties Ltd. v. Glackin|

CONSTITUTION

Personal rights

Property - Protection - Commerce - Documents - Production - Company - Membership - Investigation - Information required by company's inspector - Retrospective effect of legislation - Exigencies of the common good - (1991/235 JR - Murphy J - 7/2/92)

|Chestvale Properties Ltd. v. Glackin|

PRACTICE

Documents

Production - Company - Membership - Investigation - Information required by company's inspector - Statutory power to require production of documents - Retrospective effect of legislation - Exigencies of the common good - (1991/235 JR - Murphy J. - 7/2/92) - [1993] 3 I.R. 35 - [1992] ILRM 221

|Chestvale Properties Ltd. v. Glackin|

STATUTORY INTERPRETATION

Enactment

Application - Retrospection - Power - Conferment - Production of documents - Statutory demand for production - Whether documents created before date of statute captured by demand - (1991/235 JR - Murphy J. - 7/2/92) - [1993] 3 I.R. 35 - [1992] ILRM 221

|Chestvale Properties Ltd. v. Glackin|

TRIBUNAL

Member

Bias - Allegation - Assessment - Objective test - Competence of member challenged by person without status - (1991/235 JR - Murphy J. - 7/2/92) - [1993] 3 I.R. 35 - [1992] ILRM 221

|Chestvale Properties Ltd. v. Glackin|

Citations:

COMPANIES ACT 1990 S14

COMPANIES ACT 1991 S10(1)

COMPANIES ACT 1990 (COMMENCEMENT) (NO 2) ORDER 1991 SI 117/1991

COMPANIES ACT 1991 S10(1)

COMPANIES ACT 1990 S9

COMPANIES ACT 1990 S14(5)

HAMILTON V HAMILTON 1982 IR 471

COMPANIES ACT 1990 PART II

COMPANIES (CONSOLIDATION) ACT 1908 S109

COMPANIES (CONSOLIDATION) ACT 1908 S110

COMPANIES (CONSOLIDATION) ACT 1908 S111

COMPANIES ACT 1963 S165

COMPANIES ACT 1963 S166

COMPANIES ACT 1963 S167

COMPANIES ACT 1963 S168

COMPANIES ACT 1963 S169

COMPANIES ACT 1963 S170

COMPANIES ACT 1963 S171

COMPANIES ACT 1963 S172

COMPANIES ACT 1963 S173

COMPANIES ACT 1990 S22

COMPANIES ACT 1990 S6

CONSTITUTION ART 15.5

PMPS & MOORE V AG 1983 IR 339

CONSTITUTION ART 43.2.1

DUBLIN & CO BROADCASTING LTD V INDEPENDENT RADIO & TV COMMISSION RADIO 2000 & CAPITAL RADIO PRODUCTIONS UNREP MURPHY 12.5.89

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

O'DONOGHUE V VETERINARY COUNCIL 1975 IR 398

PERGAMON PRESS, IN RE 1971 CH D 388

SHANNON ATLANTIC FISHERIES LTD, STATE V MIN TRANSPORT & POWER 1976 IR 93

HAUGHEY, IN RE 1971 IR 217

COMPANIES ACT 1990 S14(5)(c)

1

Judgment of Mr. Justice Murphy delivered the 7th day of February 1992

2

The Companies Act 1990Section 14 empowers the Minister for Industry and Commerce in certain circumstances to appoint one or more competent inspectors to investigate and report on the membership of any company and otherwise with respect to the company for the purpose of determining the true persons who are or have been financially interested in the success or failure (real or apparent) of the company or able to control or materially to influence the policy of the company.

3

Section 14 aforesaid came into operation on the 1st July 1991 by virtue of Statutory Instrument 117/1991.

4

On the 14th of September 1991 the Minister for Tourism, Transport and Communications established a formal inquiry into transactions leading up to the acquisition by Telecom Eireann on the 19th of June 1990 of certain lands - known as the Johnston Mooney and O'Brien site - at Ballsbridge in the City of Dublin.

5

By Warrant dated the 9th day of October 1991 the Minister for Industry and Commerce having recited that he was of opinion that there were circumstances suggesting that it was necessary in the public interest so to do appointed John A. Glackin as inspector to investigate and report on:-

"The membership of Chestvale Properties Limited and Hoddle Investments Limited and otherwise with respect to these companies for the purposes of determining the true persons who are or have been financially interested in the success or failure (real or apparent) of these companies or able to control or materially to influence the policy of these companies".

6

By letter dated the 10th October 1991 the inspector wrote to Noel P. Smyth of Noel Smyth and Partners Solicitors a letter entitled "Chestvale Properties Limited. Hoddle Investments Limited ("the companies") and after reciting his appointment as inspector and referring to the Warrant enclosed therewith went on to say as follows:-

"It has come to my attention that you are a person, within the meaning of Section 10 (1) of the Companies Act 1991 who may have now or in the past had in your possession books and documents of or relating to the companies and I should be obliged if you would produce these to me in the immediate future. I look forward to hearing from you within the next 24 hours".

7

By letter dated the 14th October 1991 addressed to Gabriel J. Moloney Managing Director and Chief Executive of Ansbacher Bankers Limited and headed and introduced as in the letter to Mr. Smyth the inspector informed Mr. Moloney as follows:-

"It has come to my attention that Ansbacher Bankers Limited were bankers to Chestvale Properties Limited, Hoddle Investments and a related company Delion Investment Dealings Limited. Accordingly you will have in your possession books and documents relating to the companies and to the related company referred to above and I should be obliged if you would produce these to me before 5 p.m. on Tuesday the 15th October 1991. In particular I would require to see all relevant bank statements, copy bank drafts and cheques, loan applications with supporting documentation, security documents including guarantees and indemnities and copies of all relevant correspondence".

8

In an affidavit sworn on the 20th of October 1991 Mr. Smyth set out the problems which he had in complying with the demand made by the inspector as aforesaid. In essence the problems with which Mr. Smyth was presented were first that he believed that full compliance with the demand would involve an infringement of his client's legal privilege and secondly that the legislation did not and could not authorize the production of documents which came into existence prior to the commencement of the relevant sections of the 1990 Act. Mr. Smyth did not seek to escape or avoid in any way the duty whatever it might be which was imposed upon him by the statute and his attitude in this regard is summarized in the penultimate paragraph of his affidavit in the following terms:-

"I have at all stages indicated to our clients, to the Tribunal, to the Inspector, to the Incorporated Law Society, and to all others directly concerned, that I intend to and shall abide by any Order that this Honourable Court may make with regard to disclosure and shall fully comply with any other terms if so required by this Honourable Court".

9

The attitude of Ansbacher Bankers Limited is likewise dealt with fully in the affidavit of Eamonn, Mullan sworn on the 21st day of October 1991. Mr. Mullan makes clear that the bank acting on the advice of their solicitors and Counsel took the view that they would properly disclose to the inspector the books and records in their possession in relation to Chestvale Properties Limited but in relation to Delion Investment Dealings Limited that a very real doubt existed as to the rights of the inspector to the documents sought by him. In relation to the latter documents the bank sought to resolve the problem in discussion with Mr. Glackin and with their clients. These discussions were overtaken by the litigation herein. On the 16th of October 1991 the inspector instituted proceedings against the bank and the solicitor for an Order directing the Defendants to deliver up to him the documents which he had demanded as aforesaid and on the same day the inspector applied ex-parte for and was granted an Order directing the Defendants to preserve within the jurisdiction all of the books and records aforesaid. On the same day and in another Court Chestvale and Hoddle applied ex-parte and were granted leave to apply for declarations and Orders of Prohibition by way of an application for Judicial Review in respect of the jurisdiction conferred by the Warrant of Appointment granted by the Minister to the inspector pursuant to Section the Companies 1990. Whilst the application by the applicant Companies for an Order staying the inspector's investigations was refused, the Learned Judge was quoted in a letter from the solicitors for the Applicants to the solicitors on behalf of the bank as saying that:-

"If your client (the bank) now complies with the demands and it is subsequently deemed that your client (the bank) was not obliged to do so then our clients (the applicant Companies) would have an appropriate remedy".

10

It was in those circumstances that the Bank made it clear to the inspector that they are happy to abide by whatever decision the Court might make in the matter.

11

Whatever other problems arise the attitude adopted by the solicitors and by the bankers was entirely proper both in relation to their...

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