Competition Authority v Irish Dental Association

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice William M. McKechnie
Judgment Date27 April 2005
Neutral Citation[2005] IEHC 361
Date27 April 2005
Docket Number[2005 No. 521P]

[2005] IEHC 361

THE HIGH COURT

2005/521P
COMPETITION AUTHORITY v IRISH DENTAL ASSOCIATION

BETWEEN

THE COMPETITION AUTHORITY
PLAINTIFF

AND

THE IRISH DENTAL ASSOCIATION
DEFENDANT

COMPETITION ACT 2002 S4

EC TREATY ART 81

COMPETITION ACT 2002 S14

COMPETITION ACT 2002 S45(2)

COMPETITION ACT 2002 S45(4)

COMPETITION ACT 2002 S45(3)

AG v O'BRIEN 1965 IR 142

DPP v KENNY 1990 2 IR 110

UNIVERSAL CITY STUDIOS INCORPORATED v MULLIGAN 1999 3 IR 392 1998 1 ILRM 438

KENNEDY v LAW SOCIETY OF IRELAND & ORS 2002 2 IR 458

SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE COMMISSIONERS & ORS 2002 2 IR 243

CONSTITUTION ART 40.5

MISUSE OF DRUGS ACT 1977 S26

UNIVERSAL CITY STUDIOS INCORPORATED & ORS v MULLIGAN 1999 3 IR 407

COMPETITION LAW: search warrant

EVIDENCE: admissibility

Evidence - Admissibility - Issue of search warrant for purpose of obtaining information necessary for performance by Authority of its functions - Competition Act 2002 (No 14), ss 4(1) and 45 - Treaty of Rome, Article 81 - Evidence found inadmissible

Warrant - Search warrant - Error - Misstatement of defendant's business - Evidence obtained on foot of faulty warrant - Whether deliberate and conscious violation of defendant's constitutional rights - Exclusion of evidence obtained by invasion of constitutional rights - Whether exclusionary rule applicable outside sphere of criminal law -

Facts: The plaintiff instituted proceedings seeking declarations and injunctive relief on the basis that the respondent breached section 4 of the Competition Act, 2002 and Article 81 of the E.C. Treaty. In order to investigate the alleged breach the plaintiff obtained a search warrant and used that warrant to search the defendant's premises and remove certain documentation. However, due to an oversight the warrant on its face, permitted that authorised officer to enter and search the defendant's premises and remove documents in connection with its business of selling, supplying or distributing motor vehicles. The respondent submitted that the search was carried out on foot of an illegal warrant and was in breach of the respondent's constitutional rights and consequently the evidence obtained was inadmissible.

Held by McKechnie J. in ruling the evidence inadmissible:

That the search warrant was illegal and the activities of the plaintiff in pursuance of that warrant, namely the search of the defendant's premises and the removal of documents, constituted a breach of the defendant's constitutional rights. Furthermore, the public interest favoured the exclusion of the evidence in this case.

Reporter: L.O'S.

1

EXTEMPORE JUDGMENT delivered by Mr. Justice William M. McKechnie on the 27th April, 2005 .

2

1. The Competition Authority is the statutory body charged with the responsibility of enforcing the provisions of the Competition Act, 2002. In respect of any agreement, decision or concerted practice, which is a breach of s. 4 of that Act or which is prohibited under Article 81 of the E.C. Treaty, the Competition Authority has a statutory cause of action as specified in and provided for under s. 14 of that Act. The defendant is a company limited by guarantee and was incorporated on 23rd June, 1989. It is a representative body which apparently has a membership close on 1200 of the practising dentists in this State. It represents such members in a variety of ways, including in matters such as negotiations with the Government, Health Boards and other such bodies.

3

2. In May, 2004, DeCare, a United States dental insurer, in conjunction with the VHI, launched a private dental insurance product on the Irish market. In the broadest of terms, it is alleged that certain actions taken and/or advises and recommendations given by the defendant, whom I shall refer to as the "I.D.A.," in respect of its members participation with this product, including a recommendation not to complete or sign the relevant claims form, constitute unlawful conduct and thus is a breach of both the section and the article above mentioned.

4

3. On 11th May, 2005, a plenary summons was issued in this case in which the Competition Authority sought certain declarations as well as injunctive relief. The basis upon which such declarations and relief are sought are, as I previously indicated, an allegation that there was a breach, in the manner briefly described above, of s. 4 of the Act and of Article 81 of the E.C. Treaty.

5

4. On the same day, a notice of motion also issued on behalf of the plaintiff seeking a number of prohibitary injunctions as well as a mandatory injunction, all by way of interlocutory orders. Affidavits have been sworn and filed on behalf of both parties to these proceedings and written submissions have been exchanged and lodged in court. Because this judgment deals only with a specific issue, it is unnecessary to outline in any detail many of the facts, matters and circumstances which would be highly germane to a full hearing of the substantive action.

6

In addition to the above therefore, it is sufficient to say by way of general background, that the negative injunctions sought in the notice of motion seek to restrain the giving of any such advice or the issuing of any such recommendation, and also seek to prohibit the I.D.A. from any coordination of conduct by its members which may have the object or affect of interfering with the business of this particular product or of the development or introduction of similar products in this jurisdiction. The affirmative order sought is to inform its members by way of a communication that each individual dentist is free to decide for himself or herself their particular relationship with the dental insurers above mentioned. The I.D.A. disputes and completely denies the claims made against it by the Competition Authority.

7

5. The specific issue of immediate concern arises in the following manner. Apparently in September, 2004, the Competition Authority received a complaint in the context of the matters above described, upon which it decided to launch an investigation which at the relevant date was in existence for about four weeks. In October of that year, it felt that the obtaining of a search warrant would help to further this ongoing investigation. Such a search warrant is available under the provisions of s. 45 of the Act of 2002. That section deals with a number of matters, including the powers of an authorised officer as well as the powers of the District Court to grant such a warrant. Under s. 45 (2) of the Act, on the production of a warrant issued under subs. (4) thereof, an authorised officer may exercise any of the powers mentioned in subs. (3). These powers include powers to enter, if necessary by force, to search premises and to seize and retain any documents found within, which are covered by that warrant. The premises in question cover not only business premises but also domestic residential units. The subsection therefore is quite substantial in its scope and breadth.

8

6. Under subs. (4), a judge of the District Court may issue a warrant to an authorised officer for the purposes of subs. (2), if the judge is satisfied from information on oath that it is appropriate to so do. Subsection 2(2) as I have just said, authorises that officer, on the production of such a search warrant validly issued and valid at the time of its production, to carry out and exercise any of the powers specified in subs. (3) which are covered by that warrant.

9

7. Ms. Fenton is a solicitor with the Competition Authority and also an authorised officer for the purposes of, inter alia, s. 45. It would appear that under her guidance, the necessary information was drawn up and a draft warrant produced by her office. On the 11th October, another member of the Competition Authority and herself, both attended before the District Court, which at that time was being presided over by Judge Connellan. It would appear unquestionally that the purpose of their presence was to seek the issue of a warrant under s. 45 (4). The hearing lasted somewhere between 7 and 10 minutes. During that time the District Judge was given a copy of the Competition Act and had of course in his possession the information which I have just mentioned and upon which the warrant was sought, and also had the draft warrant. Presumably if he was satisfied on the information produced and otherwise was of the view that it was appropriate to so do, the District Judge would be invited to, and would sign the warrant which had emanated from the offices of the Competition Authority and which had been handed to him by or on behalf of Ms. Fenton. It seems from the oral evidence given to this court by Ms. Fenton, that the District Judge asked some questions about the powers of the Competition Authority under the Act of 2002 but made no inquiry whatsoever either with regard to the information which had been supplied or the draft warrant which had been produced.

10

8. This warrant, which is on the computer system of the Competition Authority, was downloaded in a standard format. The authorisation specified on the face of the warrant permits an authorised officer, namely Vanessa Fenton, to:-

"(a)... enter, if necessary by force, the premises of the Irish Dental Association with the address specified therein and to search those premises or vehicles in or by means of, which any activity in connection with the business of selling, supplying or distributing motor vehicles or in connection with the organisation or assistance of persons engaged in any such business, is carried on."

11

This is a direct quote from the operative part of the warrant and not from any recital section of it.

12

9. There are a further six sub-paragraphs, again all within the operative part of the warrant, each of which...

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