The Law Society of Ireland v The Competition Authority

JurisdictionIreland
JudgeO'Neill J.
Judgment Date21 December 2005
Neutral Citation[2005] IEHC 455
CourtHigh Court
Docket Number[2004 No. 963 JR]
Date21 December 2005

[2005] IEHC 455

THE HIGH COURT

[No. 963 JR/2004]
LAW SOCIETY OF IRELAND v COMPETITION AUTHORITY
JUDICIAL REVIEW

BETWEEN

THE LAW SOCIETY OF IRELAND
APPLICANT

AND

THE COMPETITION AUTHORITY
RESPONDENTS

COMPETITION ACT 2002 S30(1)(d)

COMPETITION ACT 2002 S30(1)(a)

COMPETITION ACT 2002 S30(1)(c)

COMPETITION ACT 2002 S45(1)

COMPETITION ACT 2002 S3(1)

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S31(1)(d)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S37(5)

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD (PIAB) UNREP HIGH COURT MACMENAMIN 21.1.2005

COMMISSION TO INQUIRE INTO CHILD ABUSE, RE 2002 3 IR 459

KEANE v BORD PLEANALA (NO2) 1997 1 IR 184

HAUGHEY, IN RE 1971 IR 217

MAGUIRE & ORS v ARDAGH & ORS (OIREACHTAS JOINT COMMITTEE ON JUSTICE) [ABBEYLARA CASE] 2002 1 IR 385

FREEMAN, STATE v CONNELLAN 1986 IR 433 1987 ILRM 470

WHEAT v US 486 US 153

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

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S31(4)

ROYLE, STATE v KELLY 1974 IR 259

CRIMINAL JUSTICE (LEGAL AID) ACT 1962

CRIMINAL JUSTICE (LEGAL AID) REGS 1965 SI 12/1965

HEANEY v IRELAND 1994 3 IR 593 1994 2 ILRM 420

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)(c)

X v UK 1998

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1(1)

CROISSANT v GERMANY 1992 16 ECHR 135

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

HEANEY & MCGUINNESS v IRELAND 33 EHRR 264

OFFENCES AGAINST THE STATE ACT 19339 S52

SERVES v FRANCE 1997 28 EHRR

COMPETITION ACT 2002 S31(1)(40)

COMPETITION LAW

Competition authority

Investigations - Express powers - Incidental and consequential powers - Whether respondent had express power to prohibit multiple legal representation of persons appearing before it - Heaney v Ireland [1994]3 IR 593 applied - Whether respondent had such incidental or consequential power -Competition Act 2002 (No 14), ss 3(1), 11,14, 30(1), 31, 37 and 45(1) - Certiorari granted (2004/963JR - O'Neill J -21/12/2005) [2005] IEHC 455, [2006] 2 IR 262

LAW SOCIETY OF IRELAND v COMPETITION AUTHORITY

The applicant sought an order of certiorari quashing a notice, published by the respondents, which contained a general prohibition on the same lawyer representing more than one client in any matter under investigation by the respondents. The applicant submitted that the notice was ultra vires the powers and functions of the respondents and infringed the right to choose a lawyer and to basic fairness and procedures guaranteed by Article 40.3 of the Constitution.

Held by O'Neill J. in granting an order of certiorari: That notwithstanding the fact that the respondents had a power which was incidental to or consequential upon the functions and powers conferred upon them under ss. 30 and 31 of the Act of 2002, to publish notices of the kind impugned in these proceedings, the notice in question impermissibly infringed the right of a person appearing before the respondents to choose their own legal representation and therefore breached fair procedures.

Reporter: L.O'S.

1

JUDGMENT of O'Neill J. delivered the 21st day of December, 2005.

2

On 4th August, 2004, the respondents published a notice dated 28th July, 2004. That notice read as follows:

"NOTICE IN RESPECT OF LEGAL REPRESENTATION OF PERSONS ATTENDING BEFORE THE COMPETITION AUTHORITY "

3

ARTICLE 1

4

INTRODUCTION

5

This notice is published by The Competition Authority, 14 Parnell Square, Dublin 1, ("the Authority") pursuant to the function conferred on it by s. 30(1)(d) of the Competition Act, 2002 ("The Act"). Its purpose is to give guidance to businesses and legal practitioners on the Authority's policy in relation to the legal representation of persons attending before the Authority, consistent with the rights of the public in the integrity and effective functioning of the Authority's investigative processes.

6

ARTICLE 2

7

DEFINITIONS

8

For the purposes of this notice:-

9

"Attending before the Competition Authority", means:

10

(a) attending before the Authority, (whether at the offices of the Authority or elsewhere) on foot of a summons issued pursuant to s. 31(1)(a) of the Act;

11

(b) attending before the Authority (whether at the offices of the Authority or elsewhere) for the purposes of examination on oath pursuant to s. 31(1)(b) of the Act;

12

(c) attending before the Authority (whether at the offices of the Authority or elsewhere) for the purposes of producing documents on foot of a requirement made pursuant to section 31(1)(c) of the Act;

13

(d) attending at oral hearings held by the Authority (whether in the offices of the Authority or elsewhere);

14

(e) attending at merger pre-notification meetings with the Authority (whether at the offices of the Authority or elsewhere);

15

(f) attending voluntarily before the Authority (whether in the offices of the Authority or elsewhere);

16

(g) for the purposes of tendering information and producing document:.

17

"Authority" includes members of the Authority or any of them, members of staff of the Authority or any of them, and authorised officers appointed under s. 45(1) of the Act,

18

"Lawyer" includes a solicitor, another solicitor in the firm to which the first mentioned solicitor belongs, and a barrister,

19

"Person" includes both natural persons and undertakings as defined in s. 3(1) of the Act.

21

GENERAL POLICY

22

(1) The Authority's ability to carry out effectively its investigative functions under the Act relies heavily on its right to obtain fully the information and forthright testimony and statements of persons attending before it without such efforts being compromised by conflicts which potentially arise where the same lawyer represents more than one person attending before the authority.

23

(2) The Authority recognises the right to legal representation of persons attending before it who are under investigation by the Authority. As a matter of law, the same right does not extend to persons who are merely witnesses attending before the Authority and who are not, or are not likely to be, the subject of an investigation. However, as a matter of general policy, the Authority will permit such witnesses to be legally represented so long as the choice of representation does not threaten to compromise the integrity or proper functioning of its investigative processes.

24

(3) In general the Authority takes the view that the integrity of its processes is, or is likely to be compromised by the fact that the same lawyer represents more than one person in any particular matter, be it two parties to an investigation or a party to an investigation and a witness relevant to that investigation. In general, therefore, the Authority will not permit the same lawyer to represent both persons.

25

(4) In circumstances where the Authority is of the opinion that the integrity of its processes may be compromised by the fact that the same lawyer represents more than one person in any particular matter it will permit that lawyer to appear before it on behalf of only one of those persons.

27

EXCEPTIONS

28

Notwithstanding its general policy, the Authority may allow, upon application a legal representative to act for more than one person or witness in relation to the same matter if the Authority is satisfied that the integrity of its processes will not thereby be compromised.

29

ARTICLE 5

30

SPECIAL PROVISIONS IN RELATION TO MERGER REVIEW

31

Notwithstanding the provisions of Article 3, as a matter of general policy, the Authority will permit the same lawyer to act for more than one person in the course of the review of a merger or acquisition pursuant to part 3 of the Act, unless the Authority is of the opinion that in any particular case that such representation has the potential to compromise the integrity of the review process."

32

The applicants being aggrieved by the content of Articles 3 and 4 of this notice sought and were granted leave to apply for judicial review by order of this court (McKechnie J.) on 3rd November, 2004, to pursue the reliefs which are set out in the notice of motion which inter alia include, a declaration that the decision of the respondent dated 28th July, 2004, is ultra vires the powers and functions of the respondent pursuant to s. 30(1) of the Companies Act, 2002, a declaration that the decision was not made by the respondent pursuant to any statutory or other lawful power, a declaration that in purporting to veto a choice of lawyer made by a party to an investigation or a witness that the respondents unreasonably and disproportionately infringes the rights of such persons to a lawyer of their choice and to basic fairness and procedures guaranteed by Article 40.3 of the Constitution, and finally a declaration that the decision of the respondents infringes the rights of such persons to a fair hearing pursuant to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ( "ECHR"), and as a consequence of the foregoing the decision as notified in the above notice was ultra vires the powers of the respondent and was null and void and of no legal force and effect. In addition the applicants obtained leave to apply for an injunction restraining the respondents from implementing or applying the provisions of Article 3(3) and Article 3(4) and Article 4 and Article 5 of the notice and also obtained leave to apply for an order of certiorari quashing the decision.

33

The applicant was given leave in the alternative to claim a declaration pursuant to s. 5 of the European Convention on Human Rights...

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