High Court of Ireland Decisions

1. On the 21st January, 1999 before Budd J. an application was made for Judicial Review. The High Court ordered that the Applicants do have leave to apply by way of application for Judicial Review for the following reliefs as set forth in the grounding statement, namely:-

2. The grounds on which such reliefs are sought (as amended) reads as follows:-

3. The main Affidavit is that of Margaret Heffernan sworn with many exhibits on the 25th January, 1999. She is the Third named Applicant and is a Director of the First and Second named Applicants. The Applicant companies are part of Dunnes Stores group of companies. The holding company is Dunnes Holding Company and the First and Second named Applicants are subsidiary companies of Dunnes Stores Holding Company. She is a Director and shareholder and makes the Affidavit on her own behalf and on behalf of the other Applicants.

4. In or about the years 1991 to 1992 unhappy differences arose between the then Chairman of Dunnes Holding Company, Mr. Ben Dunne and the other members of the Board. In February of 1993 Mr. Ben Dunne was removed as Chairman and in July of 1993 he was removed as an Executive Director of the Company. In addition to Mr. Bernard (i.e. Ben) Dunne being relieved of his executive power in Dunnes Stores a number of key staff who had been central to the manner in which Bernard Dunne ran Dunnes Stores, left the employment of Dunnes Stores. Coming out of these matters proceedings were instituted by Mr. Ben Dunne. In essence the actions were twofold. They included a petition which alleged oppression of Mr. Dunne as a minority shareholder in both Dunnes Stores Holdings and various other related companies contrary to the provisions of Section 205 of the Companies Acts, 1963-1990. These proceedings were compromised in November 1994 prior to trial and all allegations made by Mr. Bernard Dunne were withdrawn. He severed his connection with Dunnes Stores by the sale of all his shareholding interest and the compromise of all claims existing between Dunnes Stores and Mr. Ben Dunne.

5. In the course of preparing to deal with the claims made by Mr. Ben Dunne investigations were made into his stewardship of Dunnes Stores. This investigation was carried out on the instructions of the Solicitors for the Applicants which became known as "The Price Waterhouse Report". This document was produced in contemplation of litigation and is prima facie privileged.

6. This report was examined with the consent of the Applicants by former Judge Gerard Buchanan at the request of the Dail Committee on Procedures and Privileges. But the Judge conducted his examination in such a manner as to protect the privilege attaching to the report in the interest of those persons for whom the report had been made. In due course Judge Buchanan reported to the Committee on Procedure and Privileges. After his report and in circumstances of on-going concern in relation to the allegations a Tribunal of Inquiry was established under the chairmanship of Mr. Justice Brian McCracken by Order dated the 7th February, 1997. The Tribunal heard evidence in April and May and reported on the 26th August, 1997.

7. The Tribunal found no evidence of any impropriety on the part of Dunnes Stores and found that no favours had been granted either to Mr. Ben Dunne or the Dunnes Stores Group as a result of payment having been made by Mr. Ben Dunne to a number of named politicians (most notably Charles Haughey and Michael Lowry) and a variety of political parties. In the context of evidence given by Mr. Cathal MacDomhnaill of the Revenue Commissioners, the Dunnes Stores Group was described as "model taxpayers". After concluding that the Board of Directors bore some responsibility through omission - not having properly supervised the activities of Ben Dunne, the Chairman of the Inquiry found that the other Directors were not involved in the making of the payments. By letter dated the 11th September, 1997 the Tanaiste and Minister for Enterprise Trade & Employment (Mary Harney) wrote directly to Mrs. Margaret Heffernan of the Dunnes Stores Group as follows:-

8. Mrs. Heffernan in her Affidavit states that these alleged breaches have never been identified and that in the light of subsequent events this is of great significance.

9. Dunnes Stores have been asked to facilitate enquiries undertaken by a number of authorised officers appointed by the Second named Respondent under the provision of the Companies Act, 1990. These enquiries related inter alia to Garuda trading as Streamline Enterprises (a company owned by Mr. Michael Lowry) and Celtic Helicopters Limited (a company owned by Mr. Ciaran Haughey).

10. Margaret Heffernan states that the only substantial matter in respect of which Dunnes Stores were unable to comply with the requests of the Second named Respondent and/or her authorised officers was the production of the Price Waterhouse Report. This is requested by letter dated 17th February, 1998 and by reply dated 5th March, 1998 it was indicated that in view of the confidential nature of the report, together with the legal professional privilege attaching to it and the fact that it was largely irrelevant to the matters in question, it would not be possible to make it available to the Second named Respondent. In fact, Dunnes Stores disclosed other information which came to their attention at a later stage and sent it to the Moriarty Tribunal.

11. By a letter dated 22nd July, 1998 the Second named Respondent indicated that she had appointed one George Maloney to act as her authorised officer to conduct enquiries into the First and Second named Applicants. This is notwithstanding the considerable effort and resources being devoted to dealing with every aspect of her enquiries to date. Mrs. Heffernan asked the Minister for the basis of her decision, her motivation and the objectives of this appointment. She says that no satisfactory response was received and she says that the only response to the concerns expressed on behalf of the Applicant companies merely reiterated the statutory provisions which she contended empowered her to appoint George Maloney as her authorised officer. Mrs. Heffernan was gravely concerned at the position adopted by the Minister and in particular her refusal to state the reasons for her appointment of Mr. Maloney. The Minister did not give any details of the factual basis of his appointment and in particular did not indicate that it was no longer possible for her enquiries to be dealt with in the same manner as all the other enquiries had been dealt with to that date.

12. Mrs. Heffernan continues that her disquiet concerning the manner of the appointment of Mr. Maloney, its motivation and the course adopted was exacerbated by a request for voluminous amounts of documentation at impossibly short notice and indicated he intended to revisit matters which had been dealt with in great detail before the Tribunal chaired by Mr. Justice McCracken and other Tribunals of Inquiry which had been the subject of extensive correspondence between the parties in which the Applicants and Dunnes Stores generally had endeavoured to deal with in a helpful and conclusive fashion for some time. She was also concerned that Mr. Maloney was subject to a conflict of interest. He was an accountant and his firm acted for her daughter, Anne Heffernan. Mrs. Heffernan expected Mr. Maloney to stand down, however he did not. The Applicants brought an action against Mr. Maloney and the Minister for Enterprise Trade & Employment (hereinafter called "the Minister"). The matter came on for Judicial Review before my colleague Ms. Justice Laffoy. By the time the judgment was given Mr. Maloney had been replaced by Mr. Gerard Ryan, the First named Respondent in these proceedings. Mr. Maloney had in fact resigned on the 12th August just before Ms. Justice Laffoy had dealt with the matter.

13. In Re. Dunnes Stores Ireland Company, Dunnes Stores (Ilac Centre) Limited and Margaret Heffernan, Applicants and George Maloney and The Minister for Industry Trade & Employment, Respondents, Ms. Justice Laffoy delivered her judgment on 18th November, 1998. She refers to the aforesaid letter of 11th September, 1997 from the Minister to Mrs. Heffernan seeking co-operation in connection with enquiries being made by the Minister's department in relation to certain companies. She found that co-operation was forthcoming and there was a considerable amount of communication and passing information on documentation in the Dunnes Stores Group to the Minister's department including Mr. Fisher who had been appointed an authorised officer in relation to Garuda Limited (trading as Streamline Enterprises) and Gerard Ryan who had been appointed authorised officer in relation to Celtic Helicopters Limited. She points out that the only item not produced was the Price Waterhouse Report which was in connection with legal proceedings initiated by Ben Dunne against the Dunnes Stores Group which were compromised in November 1994. The report was a private report and referred to the purposes of litigation then in being.

14. This position was stated in a letter dated 5th March, 1998 to Mr. Fisher. It was not challenged.

15. She points out that Mr. Maloney wrote to Dunnes on the 22nd July, 1998 seeking a meeting with Mrs. Heffernan and her fellow officers on the 27th July, 1998. On Friday, 24th July, Mr. Maloney sent to Dunnes and Dunnes Ilac schedules of "initial documentation required" and requested that the documentation should be available for inspection and removal following a meeting on the following Monday, 27th July, 1998. He required an enormous amount of documentation over a weekend. However, when the matter came before Laffoy J. on 5th November, 1998 Mr. Fitzsimons on behalf of the Respondents stated that the demand issued by Mr. Maloney was no longer extant and was no longer being relied upon by the Respondents.

16. In that case, the Applicant sought to certiorari the decision of the Minister to appoint authorised officers and, in particular, the decision to appoint Mr. Maloney and to quash the demand complained of in the aforesaid letters and schedules dated 24th July, 1998 and issued by Mr. Maloney and an Order of Mandamus directing the Minister to furnish the reasons she appointed Mr. Maloney pursuant to Section 19 of the Act 1990. The Applicants' claim was grounded on the contention that the Minister had acted unreasonably, irrationally and in a manner which was ultra vires and had failed to have any or any due regard to the principles of natural and constitutional justice and fairness on various bases including failure to give adequate reasons or failure to identify information or facts relied upon to form the opinion that circumstances suggesting that the criteria set out in the relevant paragraphs of subsection (2) of Section 19 existed or on an erroneous interpretation of Section 21 of the Act of 1990. It has also been alleged that to exercise the power to appoint an authorised officer pursuant to Section 19 of the Act "is not the subject of any judicial or quasi judicial debate whereby the company must be heard herein in manner alleged or at all". However, Mr. Fitzsimons in that case, on behalf of the Respondents admitted that the power conferred on the Minister by Section 19 of the Act of 1990 is judicially reviewable.

17. She held that, "having regard to the nature of the power conferred on the Minister by Section 19, the Court is entitled to review the formation of the opinion which must precede the Minister's decision under Section 19 on the same basis as the Supreme Court held that the opinion which precedes a decision under Section 31(1) of the Broadcasting Authority Act, 1960 is reviewable". In The State (Lynch) -v- Cooney , [1982] I.R. 237. At p. 361, O'Higgins C.J. stated:-

18. And she quotes with approval the judgment of Henchy J. at p.380:-

19. She held further:-

20. Laffoy J. therefore concluded that the exercise of the power conferred on the Minister by Section 19 is reviewable for compliance with the requirements of fair procedure. She reviewed the decision of the Supreme Court delivered 28th July, 1998 in Haughey -v- Moriarty where she states:-

21. It was argued before Laffoy J. and before this Court that the appointment of an authorised officer of itself was detrimental to the Applicants in that it was a necessity preceded by the formation of an opinion as to the existence of one of the state of affairs catalogued in subsection (2). It was submitted that it would be deleterious to the reputation of the Applicants if knowledge of the making of the appointments came into the public domain. Fair procedures require that the Applicants should have been given advanced notice of the appointments and an opportunity to make representations to obviate that detriment. Mr. Hardiman argued in both Courts. Laffoy J. states:-

22. In a carefully reasoned judgment setting forth particulars of judgments depended upon by both parties she states:-

23. It was then argued before Laffoy J. that the demand for documents stated by Mr. Maloney was not merely excessive but unreasonable. She had to decide whether the demand was within Section 19, whether it is reasonable in content and whether it was reasonable in terms of the time allowed for compliance. She held that the Applicants' criticisms of the demands were well founded. She stated:-

24. She heard evidence that took a very long time and with great disruption to the business of Dunnes Stores but continued that even without that evidence in the case, the demand could not be complied with between Friday and Monday afternoon. She finds, as obiter, that the demand was both excessive and unreasonable. She also found that Mrs. Heffernan had locus standi. The Order she made was "a declaration that the Applicants are entitled to be furnished by the Minister with a statement in writing setting out her reasons for the appointment of an authorised officer in relation to Dunnes and Ilac pursuant to Section 19. In so far as the reasons will otherwise involve disclosure information, which was obtained under Section 19 or Section 20 in breach of Section 21, she adopted Mr. Fitzsimons' suggested possible way out of the dilemma created by Section 21". The order directed that the Minister swear an Affidavit setting out in full the reasons for her decision. The Affidavit should be lodged with the Chief Registrar of the High Court not later than 4 p.m. on Friday, 27th November, 1998. The Chief Registrar will be at liberty to furnish a certified copy of the Affidavit to Mr. Shubotham (a member of the firm of solicitors to the Applicants) on production of an Affidavit sworn by Mr. Shubotham, identifying the Directors of Dunnes and the Ilac and the Chief Executive Officer and the Chief Financial Officer of each company and undertaking not to furnish the Affidavit or any copy thereof or disclose the contents to any person other than the foregoing officers of the companies except by leave of the Court and Affidavits from each of the said officers containing their undertakings in similar terms giving liberty to apply. She awarded the Applicants their costs. There was no appeal of this decision.

25. In these circumstances, the Court is bound by that decision unless there are fresh grounds which were not considered by Laffoy J. The question of distinguishing it does not arise in the present case.

26. Mrs. Heffernan in her Grounding Affidavit objected to the appointment of George Maloney by letter dated 22nd July, 1998. His appointment was made, she alleges, notwithstanding the considerable effort and resources which had been devoted to dealing with every aspect of the Minister's enquiries to date. Mrs. Heffernan asked the Minister for the basis of her decision, the motivation and objectives of her appointment and she got no satisfactory response. The Minister merely reiterated the statutory provisions which she contended empower her to appoint him as the authorised officer. In particular, Mrs. Heffernan was concerned that the Minister did not give any detail of the factual basis for his appointment and, in particular, did not indicate why it was no longer possible for her enquiries to be dealt with in the same manner as her previous enquiries. It was quickly confirmed by the ridiculous request for a voluminous amount of documentation on Friday and that it was provided by the following Monday, much of which had already been dealt with in great detail before the McCracken Tribunal and other Tribunals. After the decision of Laffoy J., an Affidavit was sworn on behalf of the Second named Defendant and it purported to set out in full the reasons for her decision to appoint, firstly, Mr. Maloney and then replace him with Mr. Ryan. Mrs. Heffernan says that the Schedule of reasons appended to the Affidavit had not quieted her concerns. In fact, she says that the Affidavit confirms what she had long suspected, namely, that the determination of the Second named Respondent to appoint authorised officers does not in truth promote to initiate an investigation justified and/or necessitated by the terms of Section 19 of the Companies Act, 1990 but rather was unnecessarily based on a misunderstanding or misapplication of the law and was irrational or prompted by an improper motive. In particular, the reasons identified by the Minister fall far outside the matters for which she has statutory responsibility. They relate to events which have been well known for a considerable time. Further, several of the issues involved have already been the subject matter of other investigations and there is no discernible purpose that is being served by the investigations and mandated to the authorised officer which are, in effect, a repetition of investigations into the affairs of Dunnes Stores already carried out:-

27. By way of example, she refers to the copies of two newspaper reports. These articles appeared in the Sunday Times and Mrs. Heffernan proceeds to complain that the Dunnes Stores companies never consented to information being disclosed. There was information (in relation to Garuda Limited and Celtic Helicopters Limited) which she says, "is in the sole and exclusive possession of the said authorised officers and the Minister, their servants or agents. I further say that there is a manifest risk of further disclosure of information relating to the Applicant companies unless restrained by this Honourable Court". She adds, "I believe that the leaking of such materials suggests my misgivings both about the motives of the Second named Respondent and the manner in which the confidentiality of sensitive records and information to be compromised are well founded". She complains that the confidential information given to authorised officers which were leaked are clearly in breach of Section 21 and are potentially damaging to the Applicants and also, in some instances, defamatory. Under the Freedom of Information Act, there is an inter-departmental memo which considers that the most advantageous way for the Minister to proceed would be under Section 19 rather than an inspector appointed by the High Court under Section 8. The memo includes the following paragraph:-

28. She complains that the new letter from the new authorised officer is really a repetition of his predecessor's letter and would take months to satisfy and it would be more appropriate if an inspector appointed under Section 8 would require merely a request for documents. She points out:-

29. She sets out in paragraphs 26 and 27 of her Affidavit that the inconsistencies cast doubt on whether the reasons now given were truly operative at the time of the impugned appointment.

30. In the opinion of this Court in a judicial review it is essential that the reasons given in Court are truly operative at the time of the impugned appointment.

31. The Respondent, Gerard Ryan (the authorised officer) wrote a letter on 18th January, 1999 directed to Mrs. Margaret Heffernan in which he required her to produce documents to him at the Department Offices in Kildare Street not later than 4 p.m. on Friday, 22nd January. Amongst the items requested were copies of the audited accounts of Dunnes Stores Ireland Company for all the years since incorporation and concludes, "and take notice that a failure to comply with this requirement may constitute an offence under Section 19(5) of the Companies Act, 1990 and will therefore lead to prosecution". Mrs. Heffernan complains about the scope of this enquiry which she says is more appropriate as that which would be sought by an inspector. She adds:-

32. She points out how difficult it would be to trace and exclude all charitable donations made by Dunnes Stores or any of their directors including the former Managing Director, Ben Dunne, and her two deceased sisters. The present demand is directed to her personally. She is concerned about the scope and time scale of the Minister's requirements. Both the demand on 18th January, 1999 and the previous demand of August 1998 were accompanied by an express threat of criminal prosecutions in the event of non compliance.

33. Laffoy J. found that the Second named Respondent was wrong in law in failing to give reasons for her appointment when asked so to do and that her authorised officer's demand was found to be unreasonable both in its extent and in the time allowed for compliance with it and it bore the hallmarks of a "trawl". She makes the point that this new demand from the new authorised officer, apart from its intrinsic impropriety, is impossible to comply with in the time allowed. She says, "it is hard to believe that the Respondents were unaware that it was impossible to comply with". She says that she "gravely fears that unless a stay is placed on the activities of the First named Respondent the Applicants herein both corporate and individual will be subjected to prosecution and/or a search in a manner calculated to cause grave and possibly irreparable damage to their reputations and the Respondents may take possession of documents to which they are not entitled".

34. However, she points out that the case of co-operating with previous Section 19 officers is praised in the judgment of Laffoy J. on p.2 of her judgment.

35. She adds, "the Applicants accordingly believe that there is 'no specific lawful reasons' in support of the decision to appoint an authorised officer but says the point is rather based on a desire to general access to the records of the Applicant companies in respect of a particular period". There is no indication whatever of any current concern. The focus of the reasons relates entirely to a period which events have already been thoroughly investigated and continue to be subject to an investigation by the Moriarty Tribunal.

36. She then has regard to the headings in the Schedule furnished to her by the Minister for the purpose of making a number of observations in relation thereto. Most of these matters are also addressed in their legal submissions. At first the Minister refused to give reasons for her decision at all. In the words of Laffoy J., "this utterly stymied the Applicants in questioning the decision". She asserted that now that the obstacle placed in the path of the applicants boasts of a more subtle construction it is no less effective to the barriers of the assertions of their rights. The Applicants assert that they continue to be stymied in questioning the decision. The Minister has refused to give any indication as to what the term, "standards of corporate governance" means. It was pointed out to her about the concern to be historic rather than to raise concerns about the current events. She does not make any current allegations in respect of Mrs. Heffernan or her brother Frank Dunne and her current concerns seem to relate to what was perceived as shortcomings in the past management and financial structures. She definitely argues that the term "corporate governance" has no application to private companies in the sense applied to public companies but that private companies are required to operate within the terms of their memorandum and articles of association and in accordance with law and the Minister has no legitimate interest in the conduct of affairs of the applicant companies so long as they are so conducted. The Minister always refers to "corporate governance" but she has not explained her reasoning but has in fact declined to tell Mrs. Heffernan.

37. She admits that there has been a deliberate override of the controls in place from a small number of senior people who acted in close association with Ben Dunne and who are no longer part of the group. She says:-

38. She then refers to the demand received from the First named Respondent on 18th January, 1999 and says:-

39. Again she says:-

40. She then refers to Exhibit MH12 and continues:-

41. In a statement of opposition dated 22nd February, 1999, the Respondents, inter alia, state:-

42. They also said that the Second named Respondent has complied with the Order of the High Court of 18th November, 1998 already recited. She has furnished reasons for her decision to appoint the First named Respondent as an authorised officer to the First and Second named Applicants. Paragraph 7 of the Statement of Opposition reads:-

43. It is also alleged that the demand for books and documents and explanations have been made within the powers conferred by Section 19 of the Companies Act, 1990 and are valid. Paragraph 9 provides:-

44. Paragraph 10 provides:-

45. It is also denied that a principle of proportionality can be relied upon by the Applicant. What is specifically pleaded is that a principle of proportionality is not applied to enquiries under Section 19.

46. The opposition also denies that the third named Applicant has any right under the Constitution to confidentiality or privacy. It denies the provisions of the Companies Act which are impugned by the Applicants will in fact breach the Constitution.

47. There had been a dispute as to whether the Affidavit with reasons should be made by the Minister or an official. It was mentioned to Ms. Justice Laffoy and she made an Order on 18th December, 1998 declaring Mr. Appleby of the Department, the appropriate person to swear the Affidavit.

48. Mr. Gerry Ryan swore an Affidavit in this matter stating that as he was new to the investigation and in view of the fact that Laffoy J. had considered the previous request of Mr. Maloney being excessive that he, Mr. Ryan, wished to discuss the contents of any letter or request with the appropriate representative of the Company before formally issuing such a letter. However, the Applicant's solicitor, Mr. Shubotham, suggested meeting him to discuss the documentation required. He tried again to arrange a meeting with the appropriate officers of the Company but failed and then issued a formal request to the Third named Applicant for the production of four categories of books and documents of the Company. He explains the reasonableness of his requests. He described the description by Mrs. Heffernan that an institution of proceedings would cause the Second named Respondent to take every step to maximum publicity. He regards these averments as scandalous and unworthy of comment. He only issued his formal request because he did not meet them. If they had said that the time scale was insufficient he would have tried within reason to accommodate them.

49. Paul Appleby is the Principal Officer of the Company Law Administration Section of the Department of Enterprise, Trade and Employment. He had filed the Affidavit in accordance with Ms. Justice Laffoy's orders of 18th November, 1998 and 18th December, 1998.

50. Significantly, a number of statements in his Affidavit were accepted at the trial by the Applicants as being correct. Paragraph 8 provides:-

51. Paragraph 9 provides:-

52. Paragraph 10 provides:-

53. Paragraph 11 provides:-

54. The Applicants agree to this statement of the law and the powers of the Minister. The Affidavit of Paul Appleby states that the reasons for the Minister acting as she did were set out in a letter of 23rd July, 1998 from the Second named Respondent to the Third named Applicant. The Court has already referred to this letter and it is incorporated at an earlier stage of this judgment (MH2). He avers:-

55. He refers to the importance of Section 21 of the Companies Act, 1990 and to the Minister's Private Secretary, Mr. Padraig O'Conaill's (which is Exhibit MH6 of Mrs. Heffernan's Affidavit) letter which reads as follows:-

56. This Court is satisfied that the Applicants herein never gave permission to leak any information. It is clear that the Sunday Times did have a great deal of information which might be regarded as confidential. The reason given was that no evidence was produced by the Sunday Times journalists who always protect their sources. However a similar reason was put forward by the Garda Siochana in the Hanahoe case but the press people had no problem in giving evidence in the case and giving information about the leaks which they had received. He relies on part of a judgment of Laffoy J. of the possible sources of leaks and accepts it is part of the price which the Company's proprietor pays for the benefits of incorporation. Mr. Appleby avers:-

57. He then refers to the memorandum which has already been discussed. It is Exhibit MH8 in the Third named Applicant's affidavit and he says:-

58. He then proceeds to deal with what are the 'current concerns'. He refers to the fact that this point was raised in the proceedings before Laffoy J. and refers to a letter of the Minister of 23rd July, 1998 to the Third named Applicant and to an affidavit dated 4th September, 1998 in which he averred that:-

59. He deposes that:-

60. He continues that Mrs. Heffernan argues that the next sub-section alleges that the members of the Company have "not raised any concern with the Second named Respondent and that as the Minister is not in a position to advance the interest of any of the members of the companies in any way the Minister's enquiry is purposeless". Mr. Appleby does not accept this statement. If the affairs of the First named Applicant were conducted with intent to defraud their members or were conducted in a manner which is unfairly prejudicial to some part of its members, the Minister is entitled to exercise her jurisdiction to appoint an authorised officer.

61. This Court is of the opinion that even if the members had stated themselves to be happy, the Minister can, if bona fide, say that she is not happy. He then deals with the question of the group's failure to obtain all of the certificates and argues there can hardly be any objection to furnishing documentation in relation to it and an explanation for the delay to the authorised officer and the failure to comply with its statutory duty is a matter of legitimate concern to the Second named Respondent. It had also been argued that no demand had been made on Dunnes Store (Ilac Centre) Limited. This Deponent says that it will be served in due course.

62. The Second named Respondent in the exercise of her discretion appoints an authorised office to carry out a limited investigation of the books and documents of the Applicant companies and to seek explanations in relation thereto.

63. The existence of other enquiries is not a legitimate objection to the appointment of an authorised officer.

64. This Court accepts that that is so unless there was mala fides.

65. He points out that an authorised officer is entitled to seek explanations in relation to books and documents. Does Section 19 give a right to demand specific documents only or can one demand documents in general terms? It seems to this Court that the answer is restricted to specific documents.

66. He points out that the exhibit MH12 is not a draft of a demand for information as alleged by the Third named Applicant. It is disclosed under the Freedom of Information Act and is in fact part of an advice of Senior Counsel. It is privileged.

67. This Court is satisfied that the Minister must act at the time of the making of the appointment on circumstances and facts known to her then to prove she was right or wrong in making the appointment. The Court is only enquiring into her state of mind at the time of the making of the appointment.

68. Mrs. Heffernan's second affidavit was sworn on the 1st April, 1999 and she refers to the Affidavits of Paul Appleby and Gerard Ryan, already summarised. She points out that in the previous action there had been criticisms of the Minister appointing an authorised officer and refusing to give reasons. However, she points out that Ms. Justice Laffoy held that the Applicants were stymied in their ability to challenge the Minister's decision. The thrust of the previous case was to obtain these reasons. The Applicants were successful in attaining that objective. The instant proceeding constitutes a challenge to those reasons. She sought to clarify various statements contained in the "reasons" given in the letter of 23rd December, 1998. The Minister by failing to clarify her position prevented the Applicants from making any representations in relation to the decision in advance of these proceedings. The Minister is unwilling to define precisely what she means by the term 'corporate governance'. She adds:-

69. She talks of the great assistance that the Applicant companies have furnished to a wide variety of enquiries.

70. I must emphasise this extensive assistance in light of the clear implication in statements made on instructions by Counsel in open Court. This assistance is given without quibble or concealment. "The Applicants believe that these various enquiries mostly under the provision of judicial authorities will be properly and fairly carried out and that the Applicants commercial confidentiality will be respected in every appropriate way". In the events which have taken place it is impossible for the Applicants to have the same faith in the present proposed enquiries. This is so for a variety of reasons including the Second named Respondent's persistent failure to give reasons for her course of action until compelled to do so by Order of this honourable Court and the opaque nature of the reasons then tendered and the refusal to clarify them, the unacceptably broad nature of the enquiry outlined below, the appearance of Section 19 material in the media and the apparent indifference of the Second named Respondent to this.

71. If the purpose is the former, the inadequacy of the grounds supporting the original decision is highlighted. If the latter the motives of the Minister are called into question."

72. She then argued "the possibility of information being leaked to the media and under scores the undesirability of appointing an authorised officer in anything other than the most compelling circumstances".

73. She refers to paragraph 17 and 21 of Mr. Ryan's Affidavit and says it is clear that the investigation "is prompted by a desire to obtain the details of the Price Waterhouse investigation".

74. She points out that it is extremely damaging to the day to day business of running Dunnes Stores to have substantial management time and resources diverted to regulatory investigations let alone duplicate investigations. Finally there is the Affidavit of Boyce Shubotham sworn 1st April, 1999 where he said he had several conversations with Mr. Ryan and with Mr. Brady (of the Chief State Solicitor's Office) and offered to meet them. He formed the view that the reason Mr. Ryan rejected this offer was that he wished in effect to begin his appointment by exercising a right to question the Third named Applicant or Mr. Pat O'Donoghue (Financial Director). The Deponent's view is that Mr. Ryan could:-

75. In the view of this Court Section 19 enquiries are very restricted and the powers under Section 19 are correctly stated by Mr. Shubotham and must be exercised in the order in which they are set out above.

76. The Price Waterhouse Report was provided to the various enquiries and conducted by members and former members of the judiciary.

77. This Court has been provided with a copy of the Price Waterhouse Report. However, in view of the matter before this Court based on the pleadings it is not necessary to review the privilege already claimed for it. Also this Court is not satisfied that on the present pleadings it is appropriate to discuss it. Also Laffoy J. takes a similar line. In these circumstances the Court proposed to return the Price Waterhouse Report in its sealed condition and without the Court looking at it at all. If the privilege, is of any said relevance or of any importance the Judge of trial can decide cf. Horgan -v- Murray , [1999] 1 ILRM 257.

78. There is a Motion dated 9th April, 1999 supported by an Affidavit of Boyce Shubotham dated the same day seeking discovery. The Court is uncertain as to whether this Order is required.

79. The Respondents and Notice Party made a written submission and also the Senior Counsel addressed the Court. Under the heading, "the relief sought by the Applicant", the following paragraph appears in their submission:-

80. In discussing the discretion of the Minister, the Court was referred to a dictum of Lord Green in Associated Provincial Picture Houses Limited v. Wednesbury Corporation , [1948] 1 KB 223 at p.229:-

81. It is certainly essential to remember that what is being attacked is the validity of the appointment of the authorised officer which is a decision taken on the 22nd July, 1998. The Court's interest in the validity of that decision by reference to applicable principles of administrative law must make findings as to the circumstances appertaining and the Minister's state of mind at that time .

82. Anything which happened after 22nd July, 1998 can only be admissible or relevant in so far as it clarifies what was, as a matter of probability, in the mind of the Minister.

83. The Court cannot and should not support the deciding authority which use hindsight or retrospective reasoning. The Court must do the best it can to ascertain principles which motivated the Minister to make the Order.

84. This Court rejects the idea of there being unreasonable delay on the part of the Minister to proceed in circumstances of this case. As regards unreasonableness or irrationality, the Court is being referred to , The State (Keegan) v. The Stardust Victims Compensation Tribunal [1986] I.R. 642 in which Henchy J. stated as follows:-

85. To succeed in a claim for delay it is normal to adduce evidence of actual prejudice. This seems to be the view of the majority of Irish authorities but Hogan and Morgan, Administrative Law in Ireland has admitted that there is also some minority judicial support for the view that absence of justification for the delay is a ground in its own right.

86. Did the Minister comply strictly with the requirements of Section 19(2)? In the opinion of this Court, she did. If it said that she flagrantly rejected or disregarded fundamental reason or common sense in making the decision to appoint an authorised officer of the Applicant companies, the answer is that she did not.

87. The problem throughout this case has been that the Applicants are extremely suspicious of the Minister's motives and her agenda. These suspicions may be justified. However, one cannot just wave a sword about suspicion or innuendo. If the Court is to act, then the sword must draw blood. In the present case, there are implied criticisms that one might even find hints of wrongdoing but there is no specific charge or evidence that the Minister acted mala fide and/or vexatiously.

88. The first authorised officer was Mr. Maloney and Laffoy J. has held that the demand for documents made by him are both excessive and unreasonable. The authorised officer is perfectly entitled to make a demand for documents but what Laffoy J. found was that the demand he made was both excessive and unreasonable and in the nature of a "trawl".

89. The Applicants undoubtedly want the Court to draw inferences from those facts. They say that the Minster firstly hid behind Section 21 and wouldn't give any reasons until it was required by the Court to do so and gave reasons only two of which would possibly be blocked by Section 21 of the Act. The Applicants asked the Court to imply from those facts that the appointment of the authorised officer was invalid.

90. The decision of the Minister was made on 22nd July, 1998. She wrote a letter to Mrs. Heffernan for the Applicants on 23rd July, 1998 as follows:-

91. It is clear that the Minister is not merely using reports which were subject to the strict limitations of Section 21. At that time of course the Minister had been advised by Counsel that she had no obligation to give reasons in any event and this Court accepts that Ms. Justice Laffoy established Irish law by declaring that reasons are required under Section 19. However, before that decision, Butterworths "Companies Acts, 1963-1990"cited Norwest Holst v. Secretary of State for Trade [1978] 3 All E.R. 280 and says:-

92. Laffoy J. does not seem to be admitting that reasons have to be given in every case but certainly in Section 19 cases, she has so decided.

93. There was evidence before this Court that advice was given to the Minister that she might appoint an authorised officer to two other companies and that in the very restricted sense she might do the same in relation to the Applicants.

94. However, she was also warned that it was likely to be challenged. The view was expressed as a result of the investigations by an authorised officer it might be necessary to proceed to a full inspectorship.

95. In this case it would with hindsight, in the opinion of this Court, have been wiser to go the route of a inspectorship. Mrs. Heffernan vehemently states on at least two occasions in her Affidavits that the Applicants would oppose the inspectorship. However, Mr. Hardiman, S.C. has very properly resiled from that position. He has stated that his client would welcome an inspectorship. An inspectorship will of course provide further publicity but although it is stated that Companies are at a great loss no evidence whatsoever has been adduced other than that a lot of people will have to devote their time and energies to finding documents.

96. Both parties are agreed as to the limits of the powers of an authorised officer. He is only entitled to seek the production of specified documents. For practical reasons, these documents are produced to take copies of them or extracts from them and to require present or past officers or employees to provide an explanation on any of them. That is clearly submitted by Mr. Fitzsimons, S.C. on behalf of the Minister. Both authorised officers acceded their powers by looking for meetings for the purpose of interrogation which would certainly be more appropriate to an inspectorship. An authorised officer is very restricted. Firstly, he must seek specified documents, then he can make copies or extracts from them and he can thirdly require officers or employees present or past to provide an explanation of any of them. That is the limit of what he can do and they must be done in that order. In this case, the Applicants have not requested quashing of the acts of the authorised officers. However, it is conceded by Mr. Fitzsimons in an oral submission that the Applicants are absolutely correct to say that the authorised officer has no right to seek a meeting before he seeks specified books and documents. If that is absolutely right, he does not seek to contest that proposition at all but the Applicants know this too. They know also that since the authorised officer has no entitlement to proceed in this manner, they are perfectly entitled to decline his request. Alternatively, what they could do or have done, which they chose not to do, is sought to have an order quashing his demand and an injunction restraining him from seeking a meeting about information before he sought books and documents. They chose not to seek such reliefs for various obvious reasons. He knew perfectly well that this demand was taking place as it did by Mr. Ryan just after Ms. Justice Laffoy had quashed Mr. Maloney's demand for which relief was sought, was an attempt to engage Dunnes Stores to try to work out a solution to this issue and to agree books and documents that the authorised officer could see, to quote Mr. Fitzsimons:-

97. There was much discussion about articles which appeared in the Sunday Times. They are merely hearsay. As already mentioned, there was no effort made by either side to show where the information came from and it was admitted that the information of other authorised officers into other companies were, with the consent of those companies, released to third parties. Section 21 does not give the sort of protection to companies which might be thought desirable. It would be impossible for the present Section to prevent the possibility of a leak. It was submitted that the Court should not look at the newspaper reports. However, the Court admitted them "de bene esse". However, on mature reflection, the Court is satisfied that they were not proven apart from being presented to the Court and the Court should disregard them.

98. The Applicants also contended that the reasons set out in Mr. Appleby's Affidavit of reasons on 27th November, 1998 were not the actual reasons and that they were created after Ms. Justice Laffoy gave her decision in the earlier judicial review proceedings on 18th November, 1998. An assertion to this effect was made in opening submissions on behalf of the Applicant. Objection to it was made on behalf of the Respondents who argued that the matter had not been pleaded. The Applicants refused to apply to amend the Statement of Grounds and contended that it was covered particularly by the allegation that there was mala fides. The Court allowed the Applicants to make that case.

99. The Court is satisfied that there is no evidence before it to justify a finding of mala fides. There is also no evidence that the Minister abused her powers by appointing an authorised officer. A Company may feel harassed and suspect hidden agendas but, as Laffoy J. said in the Dunnes Stores Ireland Company v. Maloney case:-

100. The Applicants also claimed that the appointment must be seen with regard to the newly emerging doctrine of proportionality. If a Minister decides to appoint an authorised officer, it is in the criteria set out in Section 19 of the 1990 Act, that the appointment, per se, cannot be disproportionate or inappropriate as the Minister has made her appointment in the precise circumstances envisaged by the Act. The mere fact that many of the points have been already investigated does not, in itself, prohibit the Minister from appointing an authorised officer, unless there is proven mala fides. The Court also rejects the arguments based on the alleged legal principal of "duplication of process" and double jeopardy [see. In re. The National Irish Bank Limited, unreported Kelly J., 19th March, 1999 ].

101. As has been stressed, the Minister has to make her decision because there are circumstances "suggesting" various matters which are unsatisfactory in relation to the administration of the Applicant companies.

102. It would be unreasonable to put parameters to the ambit of their Inquiry as the books and other documents produced may suggest the need for clarification or explanation of directors or employees past or present. However, the Court has already indicated that the authorised officer has no authority or right to interview or interrogate members of the Company. An inspector can do it, an authorised officer could not.

103. The time allowed for complying with a request must be reasonable and, in the view of this Court, the amount indicated by Mr. Ryan in regard to the magnitude of the task he had set the Applicants was too short. There may well be reasons why an authorised officer should not allow a long time but it must, at all times, be reasonable in the particular circumstances of the particular case. The questioning or interrogation and discussion with the directors and the employees is ultra vires the powers of an authorised officer until after he has seen and copied documents. The authorised officer made it plain that had there been co-operation with him, he would have dealt with the question of time and probably have extended it. However, that is not the correct approach. He must confine himself to the powers, by their nature invasive, given to him by the Section.

104. In their written submission, the Respondents have shown that there is some doubt about the position of Mrs. Heffernan in regard to some companies and made the point from the evidence of Mrs. Heffernan and her daughter, Dr. Ann Heffernan, it is not clear who are the relevant members of each corporate entity. As from an example indicated in Dunnes Stores (Ilac) Centre Limited, the only two listed shareholders were David McCormick and Francis Condon. So, it may not be correct to say that the members of the relevant companies are restricted as suggested by Mrs. Heffernan. The mere fact that she and her brother compromised all claims against their allegedly offending brother, Ben Dunne, is not a matter of itself which would inhibit the Minister from exercising her powers. It also is not clear who are the members of the relevant Companies as no documents were produced.

105. It is pointed out also by the Respondents that if there is not any evidence that the members, as defined by the Companies Act, 1963 are of the view which Mrs. Heffernan states or is there any evidence that she has authority to speak on their behalf. The Court does not accept that if all the members were content not to have an authorised officer, the Minister thereby would be precluded from acting. It is certainly a matter which she should take into her consideration but she must always revert to the words of the Section about "the circumstances suggesting".

106. In all the circumstances, the Court is satisfied that Gerard Ryan was properly appointed by the Minister but that his demand was not specific enough; did not give sufficient time to allow compliance with it; he based it on a precondition requiring a meeting which he was not entitled to do.

107. In all the circumstances, even though it has not pleaded and will require an amendment the Court would strike down the purported demand by the said authorised officer for the reasons aforesaid. The Minister's powers must be strictly construed and an authorised officer must comply with the requirements of the acts and not stray beyond these powers.

108. The appointment was satisfactory but he acted ultra vires his powers.