The Minister for Employment Affairs and Social Protection v OCS Operations Ltd ((in Liquidation))
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 11 July 2019 |
| Neutral Citation | [2019] IEHC 569 |
| Court | High Court |
| Docket Number | [2018 No. 311 J.R.] |
| Date | 11 July 2019 |
[2019] IEHC 569
THE HIGH COURT
JUDICIAL REVIEW
Meenan J.
[2018 No. 311 J.R.]
AND
Judicial review – Charges – Strike out – Applicant seeking judicial review – Whether the decision of the District Judge to strike out the charges against the respondents was unreasonable
Facts: The first respondent, OCS Operations Ltd (in liquidation), was the operating company for Clerys Department Store on O’Connell Street, Dublin 1. Following a series of complex commercial transactions, the first respondent was acquired by Natrium Ltd. Immediately thereafter, on 12 June 2015, a provisional liquidator was appointed over the first respondent with the result that 134 employees were made redundant. A further 330 employees that were employed by various concessionaires were affected by the appointment of the provisional liquidator. Prosecutions were initiated against the first respondent and against the second and third respondents, Ms Foley and Mr Redmond, as “shadow” directors. The numerous criminal charges that were brought against the respondents and Natrium fell essentially into two categories. The first category involved a number of charges brought under the Workplace Relations Act 2015 and the Employment Permits Act 2006. Those charges were withdrawn on 4 December 2018. The second category of charges were brought under various sections of the Protections of Employment Acts 1977 – 2014. The District Judge dealt with the various charges since the date that they were first brought before him on 10 April 2017. The charges were back before him on 19 May 2017, 3 July 2017, 28 July 2017, 11 September 2017, 10 October 2017, 23 October 2017, 27 November 2017, 30 November 2017 and 4 December 2017. In the course of the hearing on 4 December 2017 the District Judge made an order for disclosure against the applicant, the Minister for Employment Affairs and Social Protection, which it consented to. The District Judge ultimately found that this order had not been complied with. The failure of the applicant to comply with this order together with other issues led to the decision to strike out the charges that remained in being as against the respondents on 20 March 2018. In judicial review proceedings, the applicant applied to the High Court seeking to challenge that decision of the District Court. The applicant’s submission centred upon the contention that the decision of the District Judge was unreasonable in that it was “disproportionate”. It was submitted that the District Judge ought to have left the matter of disclosure over to the trial judge who would deal with it in the context of the substantive hearing.
Held by Meenan J that the applicant had fallen well short of establishing any grounds upon which the High Court could grant the reliefs sought. Meenan J held that the decision of the District Judge to strike out the charges against the respondents was within jurisdiction, followed a full hearing and was the subject of a ruling which was clear, considered and correctly applied the appropriate legal principles.
Meenan J held that the application would be dismissed.
Application dismissed.
The first named respondent was the operating company for Clerys Department Store on O'Connell Street, Dublin 1. Following a series of complex commercial transactions, the first named respondent was acquired by Natrium Limited (‘ Natrium’). Immediately thereafter, on 12 June 2015, a provisional liquidator was appointed over the first named respondent with the result that 134 employees were made redundant. A further 330 employees that were employed by various concessionaires were affected by the appointment of the provisional liquidator. The loss of employment on such a scale cannot have been anything other than traumatic for those involved and their families. That these commercial transactions could have such an effect undoubtedly raised serious issues. These transactions are not however before this Court rather what this Court has to consider are a number of criminal prosecutions which were initiated following these events.
In these judicial review proceedings, the applicant seeks to challenge the decision of the District Court, dated 20 March 2018, striking out the charges that remained in being on that date.
Prosecutions were initiated against the first named respondent and against the second and third named respondents as ‘shadow’ directors. Before this Court, the first named and the second/third named respondents were separately represented.
The numerous criminal charges that were brought against the respondents and Natrium fell essentially into two categories. The first category involved a number of charges brought under the Workplace Relations Act 2015 (‘ the Act of 2015’) and the Employment Permits Act 2006 (‘ the Act of 2006’) against Natrium and the second named respondents As regards the Act of 2015, these charges related to allegations of impeding an inspector of the Workplace Relations Commission (‘ WRC’) in the course of exercising the powers conferred upon him. The charges under the Act of 2006 related to an alleged failure to comply with a requirement of an authorised officer. In the event that the second named respondent was to be convicted of these charges, she would have been liable to a fine and/or imprisonment.
These charges were withdrawn on 4 December 2018 in circumstances which will be outlined later in this judgment.
The second category of charges brought against the respondents were brought under various sections of the Protections of Employment Acts 1997 – 2014 (‘ the Acts of 1977 - 2014’). These charges concerned an alleged failure to initiate consultations with employee representations in circumstances where the employer proposes to create collective redundancies, the provision of relevant information relating to the redundancies and the keeping of particular records. These charges are tried summarily and are punishable, on conviction, by a fine not exceeding €5,000. These charges are clearly less serious than those in the first category. It was these charges that were struck out by District Judge John Brennan on 20 March 2018.
The same District Judge dealt with the various charges since the date that they were first brought before him on 10 April 2017. The charges were back before him on 19 May 2017, 3 July 2017, 28 July 2017, 11 September 2017, 10 October 2017, 23 October 2017, 27 November 2017, 30 November 2017 and 4 December 2017. In the course of the hearing on 4 December 2017 the District Judge made an order for disclosure against the applicant, which it consented to. The District Judge ultimately found that this order had not been complied with. The failure of the applicant to comply with this order together with other issues led to the decision to strike out the charges that remained in being as against the respondents on 20 March 2018. Given the number of occasions upon which the District Judge had dealt with the charges prior to this date, it can safely be said that the District Judge had full knowledge of the nature of the charges, their background and procedural history.
In April 2018 the applicant was granted leave to seek certain reliefs by way of judicial review. Amongst these reliefs were, inter alia, the following: -
‘(i) An order of certiorari by way of application for judicial review quashing the decision of the District Court .. given on 20th March, 2018 whereby the District Judge made an order striking out the prosecution that had been instituted by the applicant against the respondents.
(i) A declaration that the District Judge failed to apply the appropriate test and failed to strike a balance between the public interest in the prosecution of the offences and any risk of an unfair trial to the respondents or any of them.
(ii) A declaration .. that the District Judge's order striking out the said criminal proceedings was wholly disproportionate and unjust having regard to all the circumstances of the case.
(iii) A declaration .. that there existed no risk of an unfair trial and in the circumstances the District Judge acted irrationally and in excess of jurisdiction conferred.
(iv) A declaration .. that the applicant had fully discharged its duty to make disclosure to the respondents.
(v) A declaration that the order given by the District Judge on 4th December, 2017 was vague and uncertain and if necessary, an order .. quashing the District Judges order given on 4th December, 2017.’
It has to be said that the relief set out at (v) above is somewhat surprising given that the District Judge was told on several occasions that his order had been complied with and there was no application by the applicant to amend or vary the said disclosure order despite numerous opportunities to do so.
The within proceedings were not the only judicial review proceedings that arose out of this commercial transaction. The other proceedings related to the seizure of a laptop, used by the second named respondent and D2 Private Limited, by inspectors from the WRC. A protocol was ultimately agreed before the Court of Appeal concerning the use of information that was contained on the laptop. The hearing before the Court of Appeal took place on 27 July 2017.
The relevant date in regard to the history of the summonses is 12 June 2015, that being the date upon which a provisional liquidator was appointed over the first named respondent resulting in the redundancy of the employees involved. It was not until 10 June 2016 that the applicant applied to the District Court office for the issue of a number of summonses against the...
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