Ryan Air Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: GRIFFIN J.,FINLAY C.J.
• Judgment Date: 02 May 1989
• Neutral Citation: 1989 WJSC-SC 2304
• Docket Number: 350/88
• Date: 02 May 1989

RYAN AIR LTD

IN THE MATTER OF RYAN AIR LTD!

AND

IN THE MATTER OF A PETITION UNDER SECTION 205 OF THECOMPANIES ACT 1963

1989 WJSC-SC 2304

350/88

THE SUPREME COURT

Synopsis:

CONSTITUTION

Courts

Administration of justice - Publicity - Restriction - Court's discretion - Proceedings in camera - Conditions precedent - Complaint by member of company that its affairs were being conducted oppressively - Possible disclosure of matters prejudicial to interests of company - Statutory power to order that, at trial of action, the whole or part of proceedings be in camera - Hearing of proceedings affecting company's interests to be in public - Held that the respondent company had not shown that the disclosure of evidence at the hearing of the petition would result in a failure to do justice: ~In re Redbreast Preserving Co.~ 91 I.L.T.R. 12 examined - Courts (Supplemental Provisions) Act, 1961, s. 45 - Constitution of Ireland, 1937, Article 34 - (350/88 - Supreme Court - 2/5/89) [1989] ILRM 757

|In re RyanAir Ltd.|

COMPANY

Affairs

Conduct - Oppression - Proceedings - Hearing in camera - Discretion of Court - Conditions precedent to exercise of discretion - Constitutional requirement of hearing in public - ~See~ Constitution, courts - (350/88 - Supreme Court - 2/5/89) [1989] ILRM 757 [1989] IR 126

|In re RyanAir Ltd.|

PRACTICE

Proceedings

Hearing - In camera - Court's discretion - Conditions precedent - Possible disclosure of matters prejudicial to legitimate interests of company - Publicity required by Constitution - ~See~ Constitution, courts - (350/88 - Supreme Court - 2/5/89) 1989 IR 126

|In re RyanAir Ltd.|

Citations:

COMPANIES ACT 1963 S205(7)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6.1

CONSTITUTION ART 34

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS 1966 ART 14.1

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)

CONSTITUTION SAORSTAT EIREANN ART 64

CONSTITUTION ART 34.1

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(3)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S34(2)

REDBREAST PRESERVING CO (IRL) LTD, IN RE 91 ILTR 12

BEAMISH & CRAWFORD V CROWLEY 1969 IR 142

1 JUDGMENT delivered on the 2nd day of May 1989by FINLAY C.J. [Hamilton conc.]

2 This is an appeal against orders made in the High Court pursuant to Section 205(7) of the Companies Act 1963.These orders directed

3 (a) that these proceedings under Section 205 of the Act and every part thereof be held in camera and

4 (b) that none of the affidavits or exhibits referred to or facts therein recited, including the petitions and pleadings, be disclosed to anyone who is not a party to the proceedings.

5 The first of these orders was dated the 16th September 1988 and was made ex parte by Johnson J., and the second was dated the 4th October 1988 and was made upon a notice of motion brought by the Petitioner to rescind the order made by Johnson J. ex parte.

6 This second order was made by Costello J. and in it he refused the application to rescind the order previously made, in effect affirmed that order and added to it the inclusion of the petitions and pleadings in the matters not to be disclosed.

The subsection

7 Subsection (7) of Section 205 of the Act of 1963 reads as follows:

"If in the opinion of the Court the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the Court may order that the hearing of the proceedings or any part thereof shall be in camera."

8 The nature of the proceedings provided for in Section 205 and the variety of relief which may be obtained in such proceedings is contained in subsections (1) to (4) of Section 205 of the Act of 1963 which subsections read as follows:

9 2 "(1) Any member of a company who complains that the affairs of the company are being conducted or that the powers of the directors of the company are being exercised in a manner oppressive to him or any of the members (including himself), or in disregard of his or their interests as members, may apply to the court for an order under thissection.

10 (2) In a case falling within subsection (3) of section 170, the Minister may apply for an order under this section.

11 (3) If, on any application under subsection (1) or subsection (2) the court is of opinion that the company's affairs are being conducted or the directors' powers are being exercised as aforesaid, the court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether directing or prohibiting any act or cancelling or varying any transaction or for regulating the conduct of the company's affairs in future, or for the purchase of the shares of any members of the company by other members of the company or by the company and in the case of a purchase by the company, for the reduction accordingly of the company's capital, or otherwise.

12 (4) Where an order under this section makes any alteration in or addition to any company's memorandum or articles, then, notwithstanding anything in any other provision of this Act butsubject to the provisions of the order, the company concerned shall not have power without the leave of the court to make any further alteration in or addition to the memorandum or articles inconsistent with the provisions of the order; but, subject to the foregoing provisions of this subsection, the alterations or additions made by the order shall be of the same effect as if duly made by resolution of the company, and the provisions of this Act shall apply to the memorandum or articles as so altered or added to accordingly."

13 Neither of the parties to this appeal sought to challenge the validity of Section 205(7) of the Act, having regard to the provisions of the Constitution. The Court, therefore, must proceed on the well-established presumption of the validity of all Acts of the Oireachtas until that presumption is displaced.

14 The subsection must be considered as providing for a special and limited case within the meaning of Article 34.1 of the Constitution and as being a prescription by law for exemption from the general requirement that justice should be administered in public.

Submissions on behalf of the Appellant

15 The Appellant makes four main submissions and they are:

16 1. He asserts that the granting of an order under subsection (7) upon an ex parte application is not ever within the jurisdiction of the Court and should not have have been done in this case.

17 2. He asserts that on the facts of this case and on the proper construction of the subsection no order for a hearing in camera should have been made.

18 3. In the alternative, he contends that if an order under the subsection were on the facts of this case permissible it should have applied only to the hearing of part of the proceedings.

19 4. He contends that so much of the order as purports to prohibit the disclosure of the affidavits and other documents and facts recited therein to anyone who is not a party to the proceedings is outside the powers of the Court conferred on it by this subsection.

The subsection

20 The considerations in general which arise on the construction of this subsection do not appear to have been examined by any court prior to the hearing of this application, and it is, in my view, necessary to examine them before seeking to apply the terms of the subsection to the facts of the instant case.

21 I am satisfied that the following principles apply to the construction of this subsection.

22 1. The meaning of the expression "the hearing of the proceedings or any part thereof shall be in camera" is that such hearing shall be otherwise than in public.

23 2. Having regard to the fact that this subsection is constitutionally permissible only as an express legislative exception to the provisions for the administration of justice in public it must be strictly construed in the sense that it must be availed of only when and to the extent that it is necessary in the interests of justice to protect the legititimate interests of a company involved in a Section 205 petition

24 3. Section 205 in general provides a form of procedure and remedies which are peculiarly the creatures of statute. A member of a company seeking relief under that Section does not appear to me to have any special personal interest or right under the Constitution requiring the hearing of the proceedings in public which is independent of the mandatory provisions of the Constitution already referred to.

25 4. The subsection can only be invoked if the legitimate interests of a company are involved and it could never be availed of to conceal from publication wrongful activities on the part of a company, its directors, its officers, or servants.

26 5. The subsection cannot be invoked to protect the good name of any individual, whether a member of the company concerned or not, unless that protection is necessary to avoid a consequential serious prejudice to the legitimate interests of the company.

27 6. In a case where the power of the court under the subsection can be properly invoked the hearing incamera should be confined to such part only of the proceedings as is necessary for the protection of the legitimate interests of the company. To this principle there is, in my view, an inherent qualification, namely, that an order for the hearing of part only of the proceedings under Section 205 in camera should not be made where it would result in an unsatisfactory and unjust trial of the issues arising under the application brought pursuant to the Section.

28 7. If any party or witness in the proceedings under Section 205 has information which might be seriously prejudicial to the legitimate interests of the company, if published, an order under subsection (7) cannot per se prohibit him from publishing such information merely on the basis that it may be revealed during the hearing. Since,...