Desmond v Glackin
| Jurisdiction | Ireland |
| Judge | O'Hanlon J |
| Judgment Date | 25 February 1992 |
| Neutral Citation | 1992 WJSC-HC 1627 |
| Docket Number | Record No. 288 J.R./1991 |
| Court | High Court |
| Date | 25 February 1992 |
1992 WJSC-HC 1627
THE HIGH COURT
BETWEEN
AND
AND
Citations:
CENTRAL BANK ACTS 1942–1989
COMPANIES ACT 1990 S10(5)
OFFICIAL SECRETS ACT 1963
LYNCH, STATE V COONEY 1982 IR 337
CHESTVALE & HODDLE V GLACKIN UNREP MURPHY 14.2.92
CENTRAL BANK ACT 1989 S16(1)
CENTRAL BANK ACT 1989 S16(2)
COMPANIES ACT 1990 PART II
EXCHANGE CONTROL ACT 1954 S28
CENTRAL BANK ACT 1989 S16(2)(c)
MCGEE V AG 1974 IR 284
NORRIS V AG 1984 IR 36
KENNEDY & ORS V IRELAND 1984 IR 587
KANE, STATE V GOVERNOR OF MOUNTJOY 1988 ILRM 724
MARCEL & ORS V COMMISSIONER OF METROPOLIS POLICE & ORS 1991 1 AER 845, 1992 1 AER 72
CRIMINAL EVIDENCE ACT 1984
POLICE & CRIMINAL EVIDENCE ACT 1984 PART II
HAUGHEY, IN RE 1971 IR 217
COMMITTEE OF PUBLIC ACCOUNTS OF DAIL EIREANN (PRIVILEGE & PROCEDURE) ACT 1970 S3(4)
COMPANIES ACT 1990 S10(6)
R V BRECHNOCK OF ABERGAVENNY LAND CO 1835 3 AER 217
DE SMITH JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 4ED 556, 253
WADE ADMINISTRATIVE LAW 6ED 659
KING, STATE V MIN FOR JUSTICE 1984 IR 169
IUDWC, R V RATHMINES UDC 1928 IR 260
SHEEHAN, STATE V GOVERNMENT OF IRELAND 1987 IR 550
HARDING PUBLIC DUTIES & PUBLIC LAW 97
O'BOYLE, AG V HEALY UNREP DAVITT 9.6.55
BACHELOR IRL LTD, STATE V O'FLOINN 1958 IR 155
NORWEST HOLST LTD V SECRETARY OF STATE FOR TRADE 1978 CH 201
MCDAID V SHEEHY 1991 ILRM 250
BRADY V DONEGAL CO COUNCIL 1989 ILRM 282
MURPHY V ROCHE 1987 IR 106
MCDONALD V BORD NA GCON 1965 IR 217
EAST DONEGAL CO-OP V AG 1970 IR 317
LOFTUS V AG 1979 IR 221
COOKE V WALSH 1984 IR 710
MCMAHON V LEAHY 1984 IR 584
KELLY IRISH CONSTITUTION 2ED 299, 318
DILLANE V IRELAND 1980 IRLM 167
TORMEY V IRELAND 1985 IR 289
DPP, STATE V WALSH 1951 IR 412
ECCLES V IRELAND 1985 IR 545
MAHER V AG 1973 IR 140
WEEKES V REVENUE COMMISSIONERS 1989 ILRM 165
PEOPLE, DPP V HOWLEY 1989 ILRM 629
HOUSE OF SPRING GARDENS V POINT BLANK 1984 IR 611
KEARNEY V MIN FOR JUSTICE 1986 IR 116
PERGAMON PRESS LTD, IN RE 1970 3 AER 537
R V SECRETARY OF STATE EX PARTE PUERTRILLO 1980 3 AER 28
LONDON & CO SECURITIES LTD V NICHOLSON 1980 3 AER 861
HOGAN & MORGAN ADMINISTRATIVE LAW 2ED 86
DE SMITH ADMINISTRATIVE LAW 4ED 235
MURRAY, IN RE 1987 NIJB 1
MERRICKS V NOTT-BOWER 1964 1 AER 717
BOWES, STATE V FITZPATRICK 1978 ILRM 195
MURPHY V GREENE 1990 IR 566
EAST DONEGAL LIVESTOCK MARTS V AG 1970 IR 315
OFFICIAL SECRETS ACT 1963 S2
OFFICIAL SECRETS ACT 1963 S4
CONSTITUTION ART 38
KELLY IRISH CONSTITUTION 2ED 299
KELLY IRISH CONSTITUTION SUPP 80
Synopsis:
COMPANY
Inspector
Powers - Investigation - Membership - Control - Financial interest - Commercial information - Disclosure - State body - Constitution - Statute - Validity - Minister of State - Appointment of inspector - Nature of public interest not stated - Exchange Control Act, 1954, s. 28 - Official Secrets Act, 1963, s. 4 - Central Bank Act, 1989, s. 16 - Companies act, 1990, s. 14 - Constitution of Ireland, 1937, Articles 34, 40 - (1991/288 JR - O'Hanlon J. - 25/2/92) - [1993] 3 I.R. 67
|Desmond v. Glackin|
CONSTITUTION
Personal rights
Privacy - Business - Information - Disclosure - Confidentiality - Disclosure by Central Bank - Authority of Minister of State - (1991/288 JR - O'Hanlon J. - 25/2/92) - [1993] 3 I.R. 67
|Desmond v. Glackin|
CONSTITUTION
Statute
Validity - Inspector - Investigation - Witness - Cooperation - Absence - Certificate of inspector - Power of High Court to impose punishment as if witness guilty of contempt of court - (1991/288 JR - O'Hanlon J. - 25/2/92) - [1993] 3 I.R. 67
|Desmond v. Glackin|
The first-named Applicant in these proceedings for judicial review is Dermot Desmond, who is a stockbroker and a company director. The second-named Applicant is Dedeir, an unlimited company of which Mr. Desmond is Chairman and owner of approximately 80% of the equity through a holding company.
The first-named Respondent is John A. Glackin, a partne???query?????? Dublin firm of solicitors, who was appointed by the ???query?????? for Industry and Commerce, (the second-named Respon???query?????? under the powers conferred on the Minister by sect???query?????? the Companies Act, 1990, as an Inspector to invest???query?????? report on the membership of Chestvale Properties Hoddle Investments Ltd and otherwise with respect to these companies for the purpose 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.
The Warrant of Appointment dated the 9th October, 1991, recites that the appointment is made by the Minister, "being of the opinion that there are circumstances suggesting that it is necessary in the public interest" and provides that "the investigation shall extend to the investigation of any circumstances suggesting the existence of an arrangement or understanding which, though not legally binding, is or was observed or likely to be observed in practice and which is relevant to the purposes of the investigation."
The Inspector duly embarked on the investigation referred to in the warrant of appointment and Mr. Desmond was one of the persons from whom he sought information concerning the subject-matter of his investigation.
Ultimately, the present proceedings were initiated by Mr. Desmond and Dedeir for the purpose of seeking judicial review claiming to quash the appointment of the Inspector, or Orders restraining him from continuing with certain lines of inquiry which he was pursuing, or making use of certain materials which had been made available to him in connection with his investigation.
All these matters were debated in the public domain and led to further proceedings in which the present Applicants sought to have the Minister for Industry and Commerce attached for contempt of court because of certain comments he had made and judgment was given by me in relation to that application on the 9th January, 1992, in which I entered in some detail into the events leading up to the application for judicial review and the further application to attach the Minister for contempt of court.
In Order to expedite matters, I propose to recite again the relevant section in that judgment, which reads as follows:-
"The background to the application to attach for contempt may be summarised in the following manner. It is linked with the acquisition by Telecom Eireann in the month of June, 1990, of the Johnston Mooney & O'Brien site in Ballsbridge, Dublin, which became the subject of considerable public controversy when it emerged that the property had changed hands for a sum of £4m. the previous year, whereas the consideration for the sale to Telecom Eireann was £9.4m."
"A good deal of speculation arose as to the identity of the parties who had benefitted by what appeared to have been a spectacular financial coup and as it was considered to be a matter of public concern, the Minister for Tourism, Transport and Communications on the 14th September 1991 initiated a formal inquiry into all matters connected with the purchase of the site by Telecom Eireann. The Committee of Inquiry met persons and representatives of parties who had been concerned in the two transactions and produced a lengthy interim report in the month of October, 1991."
"While the Committee of Inquiry succeeded in producing a large amount of background information concerning the transactions within a short space of time, its findings as to the individuals who appeared to have benefitted by the transactions were incomplete and inconclusive, as appears from the following paragraphs taken from the Report:"
The interviews were productive and each of the parties appearing before the Inquiry agreed to provide the Inquiry with documents and correspondence relevant to the Inquiry.
On September 30th Mr. Noel Smyth advised the Inquiry that his retainer from Mr. Pat Doherty the claimed beneficial owner of Chestvale Properties Limited ("Chestvale") Hoddle Investments Limited ("Hoddle") and Delion Investment Dealings Limited ("Delion") had been terminated with effect from Sunday, September 29th, 1991. He stated that, because of his duty of confidentiality under the solicitor/client relationship, he was not able to provide the information on Chestvale, Hoddle and Delion which he had told the Inquiry, during an interview with the Inquiry, that he would present to the Inquiry after getting the consent of his principals. Mr. Smyth's letter was received while Mr. Pat Doherty was being interviewed by the Inquiry.
Mr. Brian Wallace of Hanby Wallace advised the Inquiry that he was advising Mr. Doherty and that he expected to provide the Inquiry with information on Chestvale, Delion and Hoddle on October 1st, 1991, subject to receiving the requisite information from the relevant sources. On Tuesday, October 1st, the Inquiry was informed that the requisite information had not been received by Hanby Wallace and they would not be in a position to respond to the Inquiry on that day. The information was not provided to the Inquiry by 6.00 p.m. on October 1st, 1991.
The Inquiry was surprised by the developments and felt that this action by Mr. Doherty and Chestvale, Delion and Hoddle could seriously delay the work of the Inquiry. The Inquiry concluded that these developments represented a serious set-back to the Inquiry and that it should, therefore, request the immediate appointment of an Inspector under the Companies Act, 1990.
"The full interim report...
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