Dunnes Stores Ltd and Another v Ryan and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kinlen |
| Judgment Date | 06 July 1999 |
| Neutral Citation | [1999] IEHC 184 |
| Court | High Court |
| Docket Number | No. 33 J.R./1999 |
| Date | 06 July 1999 |
[1999] IEHC 184
THE HIGH COURT
BETWEEN
AND
AND
Judicial Review - Certiorari - Prohibition - Whether the Minister for Enterprise acted ultra vires or male fide in appointing an officer to inspect books of the applicant companies - Whether the Minister could demand general documents or specific documents only - Whether the reasons for appointing the officer given by the Minister were valid - Whether the time given by the Minister for the production of documents was sufficient - The Companies Act 1990, s. 19 - The Constitution of Ireland 1937, Articles 38.1 and 40.1.
The appointment of an authorised officer did not impinge on the constitutional rights of the applicants'; the privilege of incorporation is open to abuse and the Minister's power to investigate any suspected abuse is necessary. There was no evidence to suggest that the Minister had acted ultra vires or male fide in appointing an officer under section 19 of the Companies Acts. The time allowed by the Minister for the production of documents was too short and the request for documents was not specific enough. The extension of time and narrowing of scope of documents sought were made subject to precondition requiring a meeting with the authorised officer; this precondition was invalid since the authorised officer has no power to demand a meeting with members of the companies before documentation has been received. The High Court so held in striking down the demand for documents by the authorised officer.
Mr. Justice Kinlen delivered the 6th day of July, 1999.
On the 21st January, 1999 before Budd J. an application was made for Judicial Review. The High Court ordered that the Applicants do have leave to apply by way of application for Judicial Review for the following reliefs as set forth in the grounding statement, namely:-
(i) An Order of Certiorari quashing the decision of the Second named Respondent which purports to appoint an authorised officer pursuant to Section 19 of the Companies Acts, 1963– 1990to examine the books and records of Dunnes Stores Ireland Limited.
(ii) An Order of Certiorari quashing the decision of the Second named Respondent which purports to appoint an authorised officer pursuant to Section 19 of the Companies Acts, 1963– 1990to examine the books and records of Dunnes Stores (Ilac Centre) Limited.
(iii) Further or in the alternative an Order of Certiorari quashing the decision of the Second named Respondent which purports to appoint the First named Respondent as an authorised officer pursuant to Section 19 of the Companies Acts to examine the books and records of Dunnes Stores Ireland Limited.
(iv) An Order of Certiorari quashing the decision of the Second named Respondent which purports to appoint the First named Respondent as an authorised officer pursuant to Section 19 of the Companies Acts, 1963– 1990to examine the books and records of Dunnes Stores (Ilac Centre) Limited.
(v) An Order of Prohibition preventing the First named Respondent from acting or purporting to act as authorised officer for or on behalf of the Second named Respondent.
(vi) Further and/or in the alternative an injunction restraining the First named Respondent from acting or purporting to act as authorised officer for or on behalf of the Second named Respondent.
(vii) Further and/or in the alternative a declaration that the provisions of Section 19(5) of the Companies Act 1990are in breach of the fundamental rights of the Applicants herein and are invalid and of no effect having regard to inter alia Articles 38.1 and 40.1 of Bunreacht na hEireann.
(viii) Further and/or in the alternative a declaration that the provisions of Section 19(6) of the Companies Act 1990are in breach of the fundamental rights of the Applicants herein and are invalid and of no effect having regard to inter alia Articles 38.1 and 40.1 of Bunreacht na hEireann.
(ix) A Declaration that Section 19(6) of the said Act does not permit the use of statements made by a person in evidence in any criminal prosecution against that person or whether in the alternative that Section 19(4) thereof does not abrogate any privilege that any person would otherwise possess.
(x) Further and/or in the alternative a declaration that no information book or document obtained by the First named Respondent pursuant to his appointment or otherwise and no statements, summary or opinion relating to the content and/or tenor of such information, book or document may be given or communicated to any person except pursuant to Section 21 of the Companies Act, 1990.
i (xi)If the necessary injunction restraining the Respondents their servants or agents or any person with notice of the making of this Order in giving or communicating to any person material of the kind set out in paragraph (ix) hereof other than in accordance with Section 21 of the said Act.
(xii) Further and/or in the alternative a declaration that any information book and/or document furnished to the Respondents by and/or on behalf of the Applicants shall not be admissible in any subsequent proceedings unless the Applicants shall have explicitly stated that any such information book and/or document was furnished to the Respondents voluntarily.
(xiii) Further and/or other reliefs as shall meet and fit to this honourable Court.
(xiv) Costs.
2. That the activity of the First named Respondent in acting on behalf of the Second named Respondent or purporting to act as an authorised officer pursuant to Section 19 of the Companies Acts, 1963– 1990to examine the books and records of Dunnes Stores Ireland Limited and Dunnes Store (Ilac Centre) Limited be stayed until the determination of the application for Judicial Review or until further Order or until the stay of proceedings shall have lapsed by reason of the Applicant's failure to serve an originating Notice of Motion herein within the proper time.
3. That the said Applicants do serve an originating Notice of Motion together with copies of the aforesaid statement and verifying Affidavit and of this Order on the Respondents and Notice Parties in the title hereof named in the time allowed by the Superior Courts Rules.
4. That the said Applicants do forthwith notify the Chief State Solicitor of the making of this Order.
5. That the costs of this application and the Order be reserved.
6. Liberty to all parties to apply on 24 hours notice to the other parties and to the Court.
The grounds on which such reliefs are sought (as amended) reads as follows:-
(a) The Second named Respondent has acted unreasonably and/or irrationally mala fide and/or vexatious, ultra vires and/or in a manner which is an abuse of their powers in making the decision to appoint the First named Respondent. Inter alia she:-
(i) failed to consider the information upon which her decision to appoint the First named Respondent as an authorised officer under the Companies Acts was purportedly based in a timely fashion;
(ii) failed to have any or any adequate regard to the facts of the Applicant's case and in particular failed to give any or any due consideration to the information already furnished to them by or on behalf of the Applicants;
(iii) failed to take relevant considerations and/or took irrelevant considerations into account and, in particular, purported to be of the opinion that there were circumstances suggesting that the affairs of the Applicant are being or have been conducted in a manner which is unfairly prejudicial to some part of its members in circumstances where the members have stated that this is not, and/or has not been the case;
(iv) failed to base the decisions on facts which were sustainable and reasonable;
(v) failed at the time of the appointment and/or thereafter to have any or any adequate reasons for the said appointment and/or purported to rely upon events which occurred before the enactment of the Companies Act, 1990as reasons for the appointment complained of;
(vi) failed to act in a manner which was proportionate and appropriate in all the circumstances and in particular:-
(a) appointed an authorised officer on the basis of information which has already been or is being investigated by other bodies of appropriate jurisdiction;
(b) appointed an authorised officer in circumstances where such officers' investigation already have been or is being undertaken by other bodies of appropriate jurisdiction;
(c) has unnecessarily exposed the Applicants to harm and prejudice;
(d) exposed or tended to expose the Applicants to double jeopardy contrary to law; and
(e) appointed an authorised officer in circumstances where the harm and prejudice suffered by the Applicants is out of all proportion to the end which can be achieved by the Second named Respondent whether pursuant to the Companies Acts or otherwise.
(vi) The Respondents and Notice Parties having no objection the Court granted the said amendment which read;
(vii) made errors of fact and/or law in considering whether to appoint the First named Respondent as an authorised officer pursuant to the Companies Acts;
(viii) failed to have regard to the purposes under the Companies Act for which her power to make the said decision was exercisable;
(ix) failed to have any or any adequate regard for the consequences of the Applicant companies of such appointment;
(x) procured the service of a demand for information which was ambiguous and incapable of fulfilment and unreasonable and threatened by her servants and/or agents criminal sanction for lack of...
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