Competition Authority v Judge O'Donnell

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 27 November 2007
• Neutral Citation: [2007] IEHC 390
• Court: High Court
• Docket Number: [2005 No. 1084 JR]
• Date: 27 November 2007

[2007] IEHC 390

THE HIGH COURT

[No. 1084 J.R./2005]

Competition Authority v District Judge O'Donnell

JUDICIAL REVIEW

BETWEEN

THE COMPETITION AUTHORITY

APPLICANT

AND

DISTRICT JUDGE HUGH O'DONNELL

RESPONDENT

AND

BURSEY PEPPARD LIMITED, FINGLAS MOTORS LIMITED AND LUSK MOTOR FACTORS LIMITED

NOTICE PARTIES

COMPETITION ACT 2002 S45(6)

RSC O.84 r26(4)

CREAVEN & ORS v CRIMINAL ASSETS BUREAU (CAB) & ORS 2004 4 IR 434 2004 11 2354

COMPETITION ACT 2002 S45(4)

BYRNE v GREY 1988 IR 31

BERKLEY v EDWARDS 1988 IR 217

DPP v WINDLE & WALSH 1999 4 IR 280 2000 1 ILRM 75

NATIONAL IRISH BANKS LTD, RE 1999 3 IR 145 1999 1 ILRM 321

BLANCHFIELD v HARTNETT 2001 1 ILRM 193

R v LEICESTER CROWN COURT, EX PARTE DPP 1987 1 WLR 1371

BRADY v HAUGHTON & ORS UNREP SUPREME 29.7.2005 2005 IESC 54

COMPETITION

Investigation

Documents seized - Application for retention of seized documents - Owners of seized property put on notice - Powers of district judge - Whether application for retention of seized documents should proceed ex parte on foot of sworn information - Whether notice parties entitled to cross-examine and lead evidence - R v Leicester Crown Court [1987] 1 WLR 1371 distinguished -Whether District Court entitled to require evidence inquiring into legality of earlier warrants and retention orders - Competition Act 2002 (No 14), s 45(6) - Certiorari granted (2005/1084JR - O'Neill J - 27/11/2007) [2007] IEHC 390

Competition Authority v Judge O'Donnell

1 O'Neill J. delivered the 27th day of November, 2007

2 By order of this Court of the 11 ^th October, 2005 the applicant was given leave to apply by way of judicial review for the following reliefs:-

3 2 "1. An order of certiorari quashing the decision of the respondent of the 6 ^th October, 2005 to dismiss the applicant's application for a retention pursuant to s. 45(6) of the Competition Act, 2002 of documents seized on foot of certain search warrants;

4 2. A declaration that an application pursuant to s. 45(6) of the Competition Act, 2002 may proceed by way of sworn information (subject to the respondent satisfying himself in regard to the contents thereof and the appropriateness of the application);

5 3. A declaration that an application pursuant to s. 45(6) of the Competition Act, 2002 may be made ex parte;

6 4. A declaration that the respondent acted ultra vires s. 45(6) of the Competition Act, 2002 in seeking to have witnesses called for the purpose of enquiring into the legality of search warrants and retention applications which were not before him;

7 5. An order remitting the matter to the Dublin Metropolitan District Court pursuant to O. 84, r. 26(4)."

8 The grounds upon which relief was sought was as follows:-

9 1. The respondent acted ultra vires s. 45(6) of the Competition Act, 2002 and in excess of jurisdiction in directing that the applicant proceed with the retention application by way of oral testimony, subject to cross examination by parties who were the subject of an on-going criminal investigation.

10 2. The respondent acted ultra vires s. 45(6) of the Competition Act, 2002 in allowing the notice parties to be heard on the retention application.

11 3. The notice parties lacked locus standi before the respondent.

12 4. The respondent acted in excess of jurisdiction and contrary to fair procedures in allowing the appropriateness of granting of the application before him to be challenged by persons who may or may not be the subject of charges and who may or may not have any or legitimate interest in the return of the material seized.

13 5. The respondents sought to have witnesses called by the applicant for the purpose of enquiring into issues concerning the legality of search warrants and retention orders which were not before him. In so doing, the respondent acted in excess of his jurisdiction."

14 The background to this matter is as follows.

15 In October, 2003 the applicant instigated an investigation into alleged price fixing among Ford dealers and Citroen dealers, the investigation being commenced and conducted by Ray Leonard, an authorised officer of the applicant. On the 26 ^th November, 2003, the applicants applied to the President of the District Court sitting in Kilkenny for warrants to search the premises of the notice parties at addresses in Dublin. On the 27 ^th November, 2003 one of these warrants was executed at the premises of the first notice party in Crumlin, Dublin 12. The second warrant was executed at the premises of the second notice party in Finglas, Dublin 11 and a third warrant was executed at the premises of the third notice party in Lusk, Co. Dublin.

16 Pursuant to the terms of s. 45(6) of the Competition Act, 2002 the applicants applied to the District Court ex parte on foot of a sworn information for permission to retain the material seized pursuant to the above searches. This application was granted.

17 On the 29 ^th October, 2004 the Supreme Court gave its judgment in the case of Creaven v. The Criminal Assets Bureau [2004] 4 I.R. 434 in which it was held that search warrants must be issued by a judge sitting within the district where the relevant premises are situated. The applicants became aware of this decision and of its significance for the validity of the above mentioned warrants in December, 2004.

18 In March, 2005 the applicant sent a file on the investigation into the Irish Ford Dealers Association to the Director of Public Prosecutions. On the 8 ^th April, 2005 the applicants returned the material that it had seized on foot of the foregoing three warrants and immediately applied ex parte to the District Court for fresh warrants, which were granted and on the same day the material which had been returned was re-seized on foot of these new warrants.

19 On the 25 ^th September, 2005 the applicant's solicitor wrote to the solicitors for the notice parties informing them of the applicant's intention to apply to the District Court on the 5 ^th October, 2005 for permission pursuant to s. 45(6) of the Competition Act, 2002 to retain the materials seized on foot of the warrants issued on the 8 ^th April, 2005.

20 On the 5 ^th October, 2005 the applicant's application came on for hearing before the respondent herein sitting in the District Court in the Dublin Metropolitan area. The application was adjourned to the following day, the 6 ^th October, 2005, and at the conclusion of same the respondent refused the orders sought by the applicant.

21 What happened in the District Court on these two days is of great importance to these proceedings. The history of the proceedings is described in the relevant parts of the affidavit of Patrick Neill who is a solicitor and authorised officer of the applicants in the following terms:-

22 2 "9. I say that on the 5 ^th October, 2005 a further application was made to the respondent sitting at Dublin Metropolitan District Court 54 for a further retention period pursuant to s. 45(6) of the Competition Act, 2002 in respect of each of the three seizures. I say that the said applications were notified to the solicitors for each of the notice parties. I say that your deponent sought to make the said applications on foot of sworn informations.

23 10. I say that the respondent raised concerns in relation to the time which had already elapsed since the initial warrants had been granted in November, 2003. I say that in this regard it was explained to the respondent and evidence called to the effect, that cartel investigations were by their nature extremely complex and it was not possible to deal with suspects in isolation as it was necessary to investigate members of a suspected cartel simultaneously. I say that this evidence was given under oath by Ray Leonard an authorised officer of the applicant who was cross examined at length by counsel for the first and second notice party. I say that the third notice party had previously indicated that it was not opposing the application.

24 11. I say that the respondent indicated that he was not satisfied with the application and sought oral and documentary evidence in respect of the original application for the search or search warrants in November, 2003. I say that specifically the respondent sought evidence from those who had executed the original warrants granted in November, 2003, the officers of the applicant who had returned the documents seized to the notice parties on the 8 ^th April, 2005, the officers of the applicant who had seized documentation on foot of the warrants granted on 8 ^th April, 2005 and the officers of the applicant who had applied for the retention of the 24 ^th May, 2004.

25 12. I say that the deponent indicated that the applicant was not in a position to adduce such evidence immediately and consequently the retention application was adjourned to 6 ^th October, 2005 at 3.00 pm. I say that in the interim your deponent briefed counsel in respect of the matter that had arisen during the course of the hearing.

26 13. I say that on the 6 ^th October, 2005 counsel on behalf of the applicant appeared before the respondent. I say that at the outset the respondent objected to the appearance of counsel in circumstances where counsel had not appeared on the previous day and suggested that it was improper for counsel to appear halfway through the application for retention. I say that counsel for the applicant disputed the respondent's remarks in this regard and that in any event the respondent allowed the application to proceed.

27 14. I say that counsel for the applicant indicated to the respondent that it was not the intention of the applicant to call the witnesses whom the respondent had directed as the only purpose in so doing would be to allow the respondent engage upon an inquiry into the legality of the previously granted search warrants and...