Re Ansbacher (Cayman) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice McCracken
• Judgment Date: 24 April 2002
• Neutral Citation: [2002] IEHC 27
• Court: High Court
• Docket Number: [1999 No. 163 Cos]
• Date: 24 April 2002

ANSBACHER (CAYMAN) LTD, RE

IN THE MATTER OF THE COMPANIES ACTS 1963 TO 1990

AND IN THE MATTER OF PART (ii) OF THE COMPANIES ACT 1990 AND SECTION 8 AND 17

AND IN THE MATTER OF ANSBACHER (CAYMAN) LIMITED (FORMERLY GUINNESS MAHON CAYMAN TRUST LIMITED, ANSBACHER LIMITED AND CAYMAN INTERNATIONAL BANK AND TRUST COMPANY

[2002] IEHC 27

No. 163COS/1999

THE HIGH COURT

Synopsis:

CONSTITUTIONAL LAW

Right to privacy

Company law - Confidentiality - Litigation - Administration of justice - Whether applicants entitled to have proceedings held in camera - Practice and procedure - Bunreacht na hÉireann, 1937 Article 34.1, 38 (1999/163COS - McCracken J - 24/4/2002)

In re Ansbacher (Cayman) Ltd - [2002] 2 IR 517 - [2002] 2 ILRM 491

Facts: The applicants had issued proceedings relating to what was colloquially known as the "Ansbacher investigation". The applicants were seeking an order enabling them to bring proceedings in camera so that their names would not be disclosed. The ultimate aim of the applicants was to prevent the publication of their names in the inspectors' report on the matter.

Held by McCracken J in refusing the relief sought. The Court did not have jurisdiction to hear the matter in camera. The fact that Article 34.1 required Courts to administer justice in public by its very nature required the attendant publicity, including the identification of parties seeking justice. It was a small price to be paid to ensure the integrity and openness of one of the three organs of the State namely the judicial process, in which openness was a vital element. Justice must not only be done, but must also be seen to be done. If this involved innocent parties being brought before the Courts in either civil or criminal proceedings, and wrongly accused, that was unfortunate, but was essential for the protection of the entire judicial system. The right to have justice administered in public far exceeded any right to privacy, confidentiality or a good name.

Citations:

COMPANIES ACT 1990 S8

CONSTITUTION ART 34.1

R LTD, RE 1989 ILRM 126

COMPANIES ACT 1963 S205(7)

CONSTITUTION ART 34.1

ROE V BLOOD TRANSFUSION BOARD 1996 3 IR 67

IRISH TIMES V MURPHY 1998 1 IR 359 1997 2 ILRM 541

D V DPP 1994 2 IR 465

IRISH PRESS PLC V INGERSOLL PUBLICATIONS LTD 1993 ILRM 747

AG FOR ENGLAND & WALES V BRANDON BOOKS PUBLISHERS LTD 1986 IR 597

DPP, PEOPLE V SHAW 1982 IR 1

Z V DPP 1994 2 IR 476

QUINN, STATE V RYAN 1965 IR 70

DE GORTARI V SMITHWICK & MIN FOR JUSTICE 199 4 IR 223

CONSTITUTION ART 38

CONSTITUTION ART 40

CONSTITUTION ART 40.3.2

KENNEDY V IRELAND 1987 IR 587

HAUGHEY, RE 1971 IR 217

BEAMISH & CRAWFORD LTD V CROWLEY 1969 1 IR 142

1 Mr. Justice McCracken delivered the 24th day of April, 2002.

2 By an Order dated 22nd September 1999 in these proceedings Johnson J ordered:

"Pursuant to Section 8 of the Companies Act 1990that the persons named hereunder be appointed as inspectors to investigate the offices of Ansbacher (Caymen) Limited (formerly Guinness Mahon Caymen Trust Limited Ansbacher Limited and Caymen International Bank and Trust Company Limited)."

3 (a) The Honourable Mr. Justice Declan Costello

4 (b) Ms. Noreen P. Mackey Barrister at Law

5 (c) Paul F. Rowan Chartered Accountant

6 IT IS ORDERED that the inspectors investigate and report to the Court on the affairs of the company in the title hereof and in particular:-

7 a "(a) to examine and define the nature and extent of the company's Irish business from 1971 to date, i.e. the business carried out in the State or any other business carried out on behalf of Irish residents whether in the State or elsewhere.

8 (b) to identify as far as possible all of the parties who are either officers (including shadow directors) and agents of the company clients of the company or who otherwise assisted in the carrying out of the business at the relevant times.

9 (c) to examine whether the Companies Acts 1963to 1990were breached by the company its officers (including shadow directors) agents or third parties at the relevant time and if so to identify the provisions involved and the persons in default in each case.

10 (d) to examine whether the affairs of the company were conducted with intent to defraud its creditors or the creditors of any other person or otherwise for a fraudulent or unlawful purpose and if so to identify the statutory provisions involved and the persons in default in each case.

11 (e) to report on any related matters."

12 It appears that the inspectors report is nearing completion and will be presented to the High Court shortly. This application is brought by McCann Fitzgerald, who are Solicitors acting on behalf of two persons who have been informed by the inspectors that their names will appear in the report as being clients of the company. The first reliefs sought are:-

13 a "(a) an Order directing that this application (and any subsequent application in these proceedings by these applicants) be heard in camera

14 (b) in the alternative, an Order for directions as to the manner in which this application, (and any subsequent application in these proceedings by these applicants) be heard."

15 Leave was given by Finnegan P. to McCann Fitzgerald to issue this motion in their name, but only on the basis that there would then be legal arguments as to whether the motion itself can be heard in camera. It should be said that it has been made quite clear that the ultimate aim of the applicants is to challenge the portion of the Order which relates to the disclosure of clients of the company, and to prevent the publication of their names as such clients. This gives rise to a difficult chicken and egg situation, as if the application to have these matters heard in camera is itself made in open Court this would almost inevitably disclose the names of the applicants. Accordingly, I decided that I would hear a preliminary issue without hearing any evidence and still conducted it in the name of McCann Fitzgerald as to whether without regard to evidence relating to the particular applicants. I had any power to order a hearing either in camera or which in some way limited the publication of the applicants names. Accordingly, at this stage I am treating this as purely a legal point.

16 Article 34.1 of the Constitution provides:-

"Justice shall be administered in Courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

17 In In Re R Limited (1989) I.R. 126 which was in effect a consideration of the provisions of Section 205(7) of the Companies Act 1963which is one of the exceptions to Article 34 prescribed by law, Walsh J. also considered the limitations imposed by Article 34 and applied a literal interpretation of the Article, and said at p. 135:-

"The Constitution of 1937 removed any judicial discretion to have proceedings heard other than in public save where expressly conferred by statute. Indeed many matters which come under the heading "lunacy and minor matters" probably do not constitute the administration of justice but simply the administration of the estates and affairs of the Wards of Court."

18 It is already well established in our constitutional jurisprudence that a phrase such as "save in such special and limited cases as may be prescribed by law" which appears in Article 34 s. 1 of the Constitution is to be construed as a law enacted, or re-enacted, or applied by a law enacted by the Oireachtas subsequent to the coming into force of the Constitution."

19 That case was followed by Laffoy J. in Roe -v- Blood Transfusion Board (1996) 3 I.R. 67, which was an application to allow the plaintiff to proceed with an action under an assumed name, on the basis that the Court had no jurisdiction allow the plaintiff to prosecute the proceedings under a fictitious name and that to purport to do so would contravene Article 34(1) of the Constitution.

20 These cases adopted a strict and literal interpretation of Article 34.1. However, such interpretation has been somewhat relaxed by the Supreme Court in The Irish Times Limited and Ors -v- Ireland (1998) 1 I.R. 359. These proceedings were by way of judicial review of a decision of Judge A.G. Murphy in Cork Circuit Court whereby he made an Order restricting the reporting of certain criminal prosecutions. It is of interest to note that the restrictions imposed did not prevent the reporting of the fact that the trial was proceeding, or of the names and addresses of the accused parties. It was made clear by the judge that he was not going to hold the trial in camera and that after the conclusion of the case the media would be totally free to report on it in detail. Not withstanding this, both Morris J. (as he then was) in the High Court and the Supreme Court held that the effect of the restrictions imposed was that the trial was not going to he held "in public". The Supreme Court granted the Order of Certiorari sought by the applicants, but in course of the judgments a number of comments were made concerning the extent of Article 34.1 of the Constitution. The applicant here relies strongly on some of these comments and I would propose to consider them in some detail.

21 Hamilton C.J. at p. 384 expressed his views as follows:-

"It was submitted on behalf of the applicants that in the absence of "an express statutory provision" as that phrase was used by Walsh J in In Re R Limited (1989) I.R. 126, no general discretion lies in the Court to order a trial otherwise than in public and that as there was no statutory enactment relevant to the instant case, there was no discretion or jurisdiction vested in the learned Circuit Court Judge to make an Order that it be tried otherwise than in public.

The effect of such submission, if valid, would be...