1. On the 14th September, 1991, the Minister for Tourism, Transport and Communications established a formal inquiry into transactions leading up to the acquisition by Telecom Éireann on the 19th June, 1990, of certain lands- known as the Johnston Mooney and O'Brien site- at Ballsbridge in the city of Dublin.

2. By warrant dated the 9th October, 1991, the Minister for Industry and Commerce, having recited that he was of opinion that there were circumstances suggesting that it was necessary in the public interest so to do, appointed the respondent as inspector to investigate and report on:-

3. By letter dated the 10th October, 1991, the respondent wrote to Noel P. Smyth of Noel Smyth and Partners, solicitors, a letter entitled "Chestvale Properties Ltd., Hoddle Investments Ltd.", and after reciting his appointment as inspector and referring to the warrant enclosed therewith went on to say as follows:-

4. By letter dated the 14th October, 1991, addressed to Gabriel J. Moloney, managing director and chief executive of Ansbacher Bankers Ltd. ("Ansbacher"), and headed and introduced as in the letter to Mr. Smyth, the inspector informed Mr. Moloney as follows:-

5. In an affidavit sworn on the 20th October, 1991, Mr. Smyth set out the problems which he had in complying with the demand made by the inspector as aforesaid. In essence the problems with which Mr. Smyth was presented were, first, that he believed that full compliance with the demand would involve an infringement of his client's legal privilege and, secondly, that the legislation did not and could not authorise the production of documents which came into existence prior to the commencement of the relevant sections of the Act of 1990. Mr. Smyth did not seek to escape or avoid in any way the duty, whatever it might be, which was imposed upon him by the statute and his attitude in this regard is summarised in the penultimate paragraph of his affidavit in the following terms:-

6. The attitude of Ansbacher Bankers Ltd. is likewise dealt with fully in the affidavit of Eamonn Mullan, sworn on the 21st October, 1991. Mr. Mullan makes clear that the bank acting on the advice of its solicitors and counsel took the view that it would properly disclose to the inspector the books and records in its possession in relation to the first applicant but that in relation to Delion Investment Dealings Ltd. ("Delion") a very real doubt existed as to the rights of the inspector to the documents sought by him. In relation to the latter documents, the bank sought to resolve the problem in discussion with the respondent and with its clients. These discussions were overtaken by the litigation herein. On the 16th October, 1991, the respondent instituted proceedings against the bank and the solicitor for an order directing the first and second notice parties herein to deliver up to him the documents which he had demanded as aforesaid and on the same day the inspector applied ex parte for and was granted an order directing the first and second notice parties to preserve within the jurisdiction all of the books and records aforesaid. On the same day and in another court, the applicants applied ex parte and were granted leave to apply for declarations and orders of prohibition by way of an application for judicial review in respect of the jurisdiction conferred by the warrant of appointment granted by the Minister to the inspector pursuant to s. 14 of the Act of 1990. Whilst the application by the applicant companies for an order staying the inspector's investigations was refused, the learned judge was quoted in a letter from the solicitors for the applicants to the solicitors on behalf of the bank as saying that:-

7. It was in those circumstances that the bank made it clear to the respondent that it is happy to abide by whatever decision the court might make in the matter. Whatever other problems arise the attitude adopted by the solicitors and by the bankers was entirely proper both in relation to their clients and to the respondent and cannot be faulted in any way.

8. The grounds on which the applicant companies seek judicial review may be summarised as follows:-

9. Legislation is said to operate retrospectively where it "takes away or impairs a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past". This definition has been accepted and applied by the Supreme Court in Hamilton v. Hamilton [1982] I.R. 466.

10. At common law there was a presumption, a strong presumption, that a statute is intended by Parliament to operate prospectively and not retrospectively. This presumption is based on the proposition that, ordinarily, the retrospective operation of a statute would cause injustice and that Parliament could not be presumed to have intended such a consequence.

11. Of course, Part II of the Act of 1990 is clearly and exclusively prospective in the sense that inspectors can be appointed thereunder only after the relevant provisions of that part came into operation. The issue between the parties to the present proceedings is whether an inspector thus appointed could exercise the powers apparently vested in him under the Act of 1990 so as to procure documents or obtain information relating to events which pre-dated the coming into operation of the Act. Whilst the Act does not state in express terms whether it should operate in that manner, I have no doubt at all that this was indeed the intention of the legislature. In this regard the most significant fact is the repeal by s. 6 of the Act of 1990 of all of the provisions of the Companies Act, 1963, dealing with the appointment of inspectors. If the former powers of investigation were no longer available to an inspector appointed under the Act of 1990, how could he possibly discharge the obligations imposed upon him to investigate and report on any of the matters referred to in Part II of the Act of 1990 unless the code created by Part II thereof was intended to be available to him to enable him to explore matters which are of their nature historic in their origins and which would entail, at least in the years immediately following the enactment of the Act of 1990, a review of facts and documents pre-dating the coming into operation of the Act. It does seem to me that in this way and to this extent pre-1990 transactions are exposed to the post-1990 regime.

12. The question then is whether legislation having this effect is unconstitutional.

13. The applicants did not and could not contend that Part II of the Act of 1990 offended Article 15, s. 5 of the Constitution. In no sense does that part of the Act of 1990 declare any act to be an infringement of the law which was not so at the date of its commission. What the applicants say is that by enacting Part II aforesaid, the Oireachtas contravened Article 40, s. 3 of the Constitution in that it failed to protect and vindicate the property rights thereby guaranteed.

14. As the rights guaranteed by that sub-section are the personal and property rights of citizens, the respondent and the Attorney General contended that an argument based on this sub-section was not available to the corporate applicants. This objection is supported by the decision of Carroll J. in P.M.P.S. and Moore v. The Attorney General [1983] I.R. 339. Ordinarily when this problem arises it is overcome by joining as a plaintiff a shareholder of the corporate plaintiff who is an Irish citizen (as was done in the P.MP.S. case). This solution was conscious1y rejected by counsel on behalf of the applicants in the present case.

15. Whilst I accept that the court should be astute to protect the rights of citizens, even when they are attacked only indirectly through particular corporate structures, it does seem to me that in the particular circumstances of this case, the absence of an individual Irish citizen asserting his own constitutional rights is fatal to the argument based on the constitutionality of the 1990 legislation. However as the matter was argued in full before me it is proper that I should express a view on it.

16. I accept that the applicants are correct in saying that the legislation does impinge to some extent on their property rights insofar as the same consist of mutual contractual obligations between themselves and their bankers and solicitors respectively. The applicants say that at the date on which Ansbacher contracted to act as their banker it was an implied term of that contract that Ansbacher would not disclose any information concerning the applicants' accounts or affairs, except on reasonable and proper occasions, as when answering enquiries by a proposing guarantor or under compulsion of law. The applicants say that the circumstances under which a banker or a solicitor might be compelled by law to disclose the affairs of his customer were significantly extended by the Act of 1990 and in that way the rights for which the customer had contracted with his bankers or solicitors had been eroded retrospectively. This is a very fine argument indeed.

17. It is common case that the customary and contractual right of a client to confidentiality from his banker or solicitor is and always has been subject to a very wide range of exceptions. Obviously the contractual bargain between the professional advisers and the applicants was subject to the statutory right of an inspector appointed under the Companies (Consolidation) Act, 1908, or the Companies Act, 1963, to obtain in a proper case information and documents relating to the affairs of the client. Again it is common case that (subject to any question of privilege) the documents which are now sought by the inspector from the bankers would be required to be included in an affidavit of discovery to be made by the bank or the applicants themselves in any proceedings in which such documents might be material to the matters in issue therein.

18. The gravamen of the applicants' complaint is that their property rights were unjustly attacked by the fact that the Act of 1990 extends to inspectors appointed for the purpose of investigating the membership of any company, the rights previously conferred only on inspectors appointed to investigate "the affairs of a company" and, it is said, conferring greater powers on both categories of inspectorate and greater legal effect on the report issued by either form of inspector. This is a marginal erosion of or interference with incorporeal property rights. This intrusion, such as it is, must be seen and evaluated against the duty of a Minister of Government to identify and satisfy himself as to the existence of a public interest to have an inspector appointed to investigate and report on the membership of a particular company. It could not be doubted that there are occasions on which it is in the public interest to penetrate a pyramid of subsidiary or related companies and/or shareholdings by trustees or nominees so as to establish, as s. 14 envisages, "the true persons who are or have been financially interested in the success or failure of a company".

19. I am satisfied that this limited intrusion on the contractual rights of the applicants could not be seen as an unjust attack on the applicants' property rights or a failure to vindicate them as far as practicable. The minimal interference is fully justifiable as a means of reconciling the exercise of property rights with the exigencies of the common good as provided by Article 43, s. 2, sub-s. 1 of Bunreacht na hÉireann.

20. It is my view, therefore, that notwithstanding the presumption against retrospectivity in all legislation enacted by the Oireachtas, Part II of the Act of 1990 operates retrospectively to the extent that any inspector appointed by the Minister under s. 14 of that Act is entitled to compel the production of documents from persons having the custody thereof, notwithstanding the fact that the contract under which such custody was obtained was made before the relevant sections of the legislation came into operation and this is so whether the person having such custody is a bank or a solicitor, though subject in the case of a solicitor to the preservation by s. 23 of the Act of 1990 of the full legal professional privilege of the client.

21. Furthermore I am satisfied for the reasons given that the operation of the sections in that way does not constitute an impermissible or unjust attack on the property rights of the applicants or either of them or indeed any citizen directly or indirectly holding shares therein.

22. On behalf of the applicants it was contended that the respondent was disqualified on the grounds of bias from fulfilling the role of inspector in the particular circumstances of the present case.

23. As I pointed out in Dublin and County Broadcasting Ltd. v. Independent Radio and Television Commission (Unreported, High Court, Murphy J., 12th May, 1989) there are two types of bias, one based on pecuniary interest and the other described as "a challenge to the favour", being a bias deriving from a special relationship or kindred causes. Subsequent to the judgment in the Dublin and County Broadcasting case the nature of the bias which may invalidate the exercise of a quasi-judicial power was further considered in a number of cases but in particular by the Supreme Court in O'Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419. The particular category or sub-category of bias under consideration by the Supreme Court was that consisting of "pre-judgment" but it seems to me that the test propounded by the Chief Justice would be equally applicable in relation to any form of bias based upon a relationship between the parties concerned. The Chief Justice propounded the test in the following terms at p. 438:-

24. The facts on which the applicants rely to establish a case of bias are set out in the affidavits of Mr. Patrick Doherty and also in a letter from his solicitors to the Minister for Industry and Commerce dated the 24th October, 1991. The respondent dealt with these allegations in a letter dated the 25th October, 1991, addressed to the Minister for Industry and Commerce commenting upon the allegation by reference to the letter of complaint to the Minister of the previous day. There are some areas of dispute between Mr. Doherty and the respondent but the general thrust of the respondent's letter to the Minister was to put in context (as the respondent would see it) the relationship between Messrs. Gerrard Scallan & O'Brien, the respondent's firm, on the one hand and Mr. Doherty and his partner or associated companies on the other. I do not think it is necessary to analyse the areas of difference. I believe that the relationship can be summarised by saying that a partner of Mr. Doherty (a Mr. Bob Langdon) and/or a company or companies in which Mr. Doherty was interested financially or as a director sought and obtained professional advice or services from Messrs. Gerrard Scallan & O'Brien sometime about October, 1981. The transaction does not appear to have been a very substantial one and I doubt that the particular services rendered would have been a matter of any significant consequence to the professional partnership or given rise to any significant discussion between the partners themselves. Mr. Doherty was not himself the client nor was the respondent the partner who dealt with any aspect of the case. However, that being said the position remains that the respondent's firm did (and to a limited extent still does) provide certain services of a professional nature for a company (though not either of the applicants) in which Mr. Doherty is undoubtedly involved. In short a neutral observer knowing the relevant facts might say that Mr. Doherty or "his company" was and is a client of Messrs. Gerrard Scallan & O'Brien.

25. Summarising the relationship between the parties in that simple way, it seems to me that the respondent would be necessarily disqualified from exercising a quasi-judicial function in any matter in which Mr. Doherty was involved. If the respondent had been appointed as arbitrator in a dispute involving Mr. Doherty, surely "a right-minded person" viewing the arbitration from the point of view of the other party to the issue would believe that there was "a real likelihood of bias". The fact that the respondent or other lawyers similarly placed might have acted with complete integrity and independence is irrelevant. The reasonable suspicion of bias would invalidate the purported exercise of a judicial function:- see O'Donoghue v. Veterinary Council [1975] I.R. 398.

26. The question then is whether the task imposed on an inspector appointed pursuant to s. 14 of the Act of 1990 involves the exercise of a function of a judicial nature. The standards to be applied by a person or tribunal carrying out investigative duties and reporting thereon has been considered in a wide variety and large number of cases. The decision in In re Pergamon Press Ltd. [1971] Ch. 388 is helpful in as much as the Court of Appeal in England was there dealing with the nature of the duties imposed upon an inspector appointed under s. 165 of the English Companies Act, 1948 (as amended by s. 38 of the Companies Act, 1967), which is similar, though not identical, to the comparable Irish legislation. In The State (Shannon Atlantic Fisheries Ltd.) v. McPolin [1976] I.R. 93, the then President of the High Court considered the nature of the functions exercised by an inspector appointed under s. 465 of the Merchant Shipping Act, 1894, in reporting to the Minister on an inquiry held by him into the wrecking of the prosecutor's fishing vessel. The nature of proceedings before the Committee of Public Accounts of Dáil Éireann and the duties owed by that committee to persons whose conduct was impugned by evidence received by the committee was analysed by the Supreme Court in In re Haughey [1971] I.R. 217.

27. I think it would be correct to say that in every one of those cases the court concluded that the investigating authority was bound to exercise an appropriate measure of natural justice. On the other hand it is, I believe, equally clear that the findings in that regard were directed and relevant only to certain issues within the various investigations and were not intended to be applied and could not in fact be applied to each and every inquiry or communication emanating from the investigating authority. In The State (Shannon Atlantic Fisheries Ltd.) v. McPolin [1976] I.R. 93, the second defendant in the course of his investigation interviewed all the members of the crew of the vessel which had been damaged and, without affording the owners of the vessel an opportunity of being heard, prepared a report of his preliminary inquiry to the Minister expressing the view that the owners had been guilty of criminal offences in permitting the vessel to sail. Notwithstanding the fact that it was a preliminary inquiry and that the final decision rested with the Minister, Finlay P. concluded that the inspector was exercising a quasi-judicial role and at p. 98 described his position as follows:-

28. Ó Dálaigh C.J. then went on in his judgment to advert to the provisions of the Constitution which guaranteed to the citizens basic fairness in the procedures or inquiries so as to enable a party to defend his good name.

29. The evolving aspect of an inspector's statutory duties was adverted to by Buckley L.J. in the same case, at p. 407, as follows:-

30. The present proceedings were instituted when the inquiry had reached only a very preliminary and exploratory stage. It was in the course of these proceedings that an affidavit was sworn by Mr. Patrick Doherty in which he claimed to be directly or indirectly the beneficial owner of the shares in question. If this assertion accords with the other material and documentary evidence obtained by the inspector in the course of his inquiries and if no other person contests the claim made by Mr. Doherty, there will be no conflict to be resolved by proceedings analogous to a judicial hearing. In these circumstances it must be presumed that the respondent (unlike Inspector McPolin in The State (Shannon Atlantic Fisheries Ltd.) v. McPolin [1976] I.R. 93) will not have to "enter a verdict" on any issue between claimants to the shares in question.

31. Even if the presumption were otherwise and that one should anticipate a stage being reached at which the respondent would find it necessary to make a choice as between conflicting claims, it is clear that that stage has not yet been reached. Accordingly the present application is premature insofar as it is based upon the contention that the inspector is engaged in a task which at present involves him in a quasi-judicial function.

32. The respondents also contend that the applicants have no locus standi to challenge the impartiality of the respondent vis-à-vis Mr. Doherty. In my view this point too is well founded. The case based on bias is constructed solely by reference to the injustice which Mr. Doherty foresees he would suffer if and when the respondent is called upon to adjudicate on a contentious issue between him and some other party as yet unidentified. Whilst I have accepted that circumstances could exist in which bias would be perceived, it is only the parties whose rights would be affected by the adverse decision who could challenge the procedure in which it was reached.

33. In any investigation by an inspector appointed by the court or by the Minister under Part II of the Act of 1990 and indeed in the very nature of any investigation seeking to establish a truth as yet unknown, it would be impossible to guarantee that the person appointed as inspector or some of his associates or advisers would not have some association or connection with some person or company who, it transpires, is interested in the subject matter of the inquiry. Presumably it could occur that the association or connection would be so direct or so close that an inspector could not continue with the inquiry and would feel compelled to resign. However, whatever problems may arise if and when the investigation evolves into a quasi-judicial inquiry by the respondent of

34. In his letter dated the 14th October, 1991, to Ansbacher, the respondent sought production of all books and documents in the possession of the addressee relating to the applicants and what is described in that letter as "a related company Delion Investment Dealings Ltd."

35. It might be inferred that by referring to a "related company" the inspector was impliedly referring to or invoking the provisions of s. 9 of the Act of 1990 as applied by s. 14, sub-s. 5 thereof to inspectors appointed by the Minister. In fact such an inference would be mistaken. Section 9 provides as follows:-

36. Section 14, sub-s. 5 of the Act of 1990 applies s. 9 and other provisions to Ministerial inspections in the following terms:-

37. Even if it were accepted that Delion is a related company of either of the applicants (and it is not) it is clear that the Minister did not at any time grant an approval in accordance with s. 9 of the Act of 1990 as applied by s. 14, sub-s. 5 (c) thereof.

38. In those circumstances it seems clear that the demand by the inspector for books and records in the possession of the bankers relating to Delion was not authorised by the Act.

39. On the other hand the fact that particular books and documents may be properly identified as being the property of or relating to one company does not necessarily preclude them from relating also to another company.

40. Whilst it seems to me that the point taken by the applicants and more particularly by the bankers in relation to the express reference to Delion is well founded, the extension of the demand to the related company does not invalidate the demand, less still does it impugn in any way the validity of the appointment of the inspector nor would it excuse the addressee from producing documents relating to Delion if they also related to either of the applicants.

41. The applicants contended that the demand made by the inspector for books and documents was expressed in such general terms and imposed such time limits as to amount to an abuse of the inspector's statutory powers and as such was invalid. It seems to me unnecessary to examine the facts relied upon by the applicants in support of this argument. Whatever argument might be constructed on the basis of any such analysis, the reality is that both the bankers and the solicitors were able to comply with the demand and within the time limits prescribed by the inspector. Neither the bankers nor the solicitors raised any objection based upon administrative difficulties. Their only concern was to ensure that in performing the obligations which appeared to be imposed upon them by statute that they did not neglect the duty which they had to their clients or former clients as the case may be.

42. In the circumstances it seems to me that there is no substance in this particular ground. Furthermore it would be difficult to sustain a challenge to the validity of the exercise of a statutory power which follows so closely the terms of the section by which it was conferred.

43. In these circumstances it seems to me that the cause shown should be allowed.