Supreme Court of Ireland Decisions

1. On the 22nd July 1998, the second named respondent (hereafter “the Minister”) informed the third named applicant/appellant, who is a director of the first and second named applicants/appellants, that she had decided to appoint an authorised officer to examine the books and documents of the First and second named applicants/appellants pursuant to s.19 of the Companies Act 1990 (hereafter “the 1990 Act”). On the same day, Mr. George Maloney, the nominated officer, also wrote to the third named respondent enclosing his warrants of appointment.

2. These steps were taken by the Minister following the furnishing to the Taoiseach of a Report by Mr. Justice McCracken as the sole member of a Tribunal of Inquiry appointed pursuant to resolutions of both Houses of the Oireachtas to inquire into payments made to certain politicians or connected persons or political parties by Dunnes Holding Company or any associated enterprises and/or by Mr. Ben Dunne. That report concluded that such payments had been to Mr. Michael Lowry TD and two companies with which he was associated and to Mr. Charles Haughey TD by Mr. Ben Dunne, who was at the relevant time the chairman and an executive director of Dunnes Holding Company. Correspondence then ensued between the Minister and officers of the department on the one hand and the third named applicant on the other hand in which the former expressed concerned that the report in question had disclosed a number of possible breaches of the Companies Acts, 1963 to 1990, and requested the production of various books and documents relating to the first and second named applicants. Although some at least of the books and documents of the applicants were made available in response to

3. Those judicial review proceedings were heard by Laffoy J, who, in a reserved judgment, concluded that the Minister was obliged to give reasons for her decision since otherwise the applicants would be entirely frustrated in any challenge they might seek to make to her decision. Although she did not quash the appointment of the authorised officer, Laffoy J did order that the Minister should swear an affidavit setting out in full the reasons for her decision to appoint the authorised officer. The response to that order was an affidavit of Mr. Paul Appleby, the principal of the Company Law Administration Section of the Department of Enterprise, Trade and Employment, sworn on the 27th November 1998, the schedule to which set out what were stated to be the reasons for the Minster appointing the authorised officer.

4. The schedule included a statement that the circumstances set out in it:-

5. The applicants were dissatisfied with the reasons as thus set out in the schedule to Mr. Appleby’s affidavit. They also claimed that the Minister’s department was disseminating information which it was obtaining from the applicants to the media without the consent of the applicants. In addition, they alleged that the demand made by the first named respondent for the production of documents was unreasonable both in its extent and the time allowed for compliance and that the applicants feared that it would be used as a justification for the criminal prosecution of the applicants and an application for a search warrant pursuant to s.20 of the 1990 Act with attendant unfavourable publicity. In the result, the present proceedings were instituted beginning with an application to the High Court for leave to apply by way of an application for judicial review, for specified reliefs. They can be summarised as follows:-

6. The High Court (Budd J) having given the leave sought by the applicants, a statement of opposition was filed on behalf of the respondents. A notice of motion was then brought on behalf of the applicant seeking the reliefs already set out. The hearing of the motion before the High Court

7. In a reserved judgment delivered on the 6th July 1999, the learned High Court judge rejected the claim on behalf of the applicants that the appointment by the Minister of the first named respondent as an authorised officer was invalid. He also concluded, however, that the first named respondent had acted unreasonably in requiring the books and records specified by him, both having regard to the extent of the requisition and the time afforded for compliance with it, and in requiring the third named applicant and/or other officers of the first named applicant to attend a meeting with him and answer questions put to them by him and that the requisition should be quashed. Since that relief had not been claimed on behalf of the applicants, he gave them liberty to amend their statement I grounds so as to include that claim.

8. Both the applicants and the respondents appealed from the order and judgement of the learned High Court judge. In their notice of appeal, the applicants sought an order remitting the proceedings to the High Court on the ground that the learned High Court judge had failed to address a number of matters on which the applicants had relied in the hearing before him and had also failed to determine whether s.19 of the 1990 Act was unconstitutional. In the alternative, they sought an order reversing the judgment and order of the High Court granting the applicants the various reliefs which they had originally claimed. In their notice of appeal, the respondents appealed from

9. On behalf of the applicants, Mr. Hardiman SC submitted that the learned High Court judge, having rejected the applicants’ claim that the appointment of the first named respondent was invalid on the various factual grounds addressed both in the evidence and in the arguments, should then have gone on to determine, whether, in the light of the constitutional construction which should be given to s.19 of the 1990 Act, the appointment of the first named respondent should nonetheless be declared invalid as being ultra vires the section. He further submitted that, in the event of the learned High Court judge having found against the applicants on that ground, he should then have gone on to determine whether s.19 was invalid having regard to the provisions of the Constitution. In the event, he had determined neither issue and, on that ground alone, he submitted, the proceedings would have to be remitted to the High Court, although that was a course which the applicants asked this court to take with natural reluctance.

10. Mr. Hardiman further submitted that, apart altogether from that consideration, the learned High Court judge had failed to address a number of

11. In particular, he said that the trial judge did not determine whether the applicants were correct in their allegation that none of the reasons given by the Minister contained material which, as was contended on her behalf, she was prohibited from releasing pursuant to s.21 of the 1990 Act. Nor did he resolve the issue raised by the applicants as to whether the invocation by the Minister of the concept of “corporate governance” was fatal to the validity of her decision. Nor had he determined the issue as to whether the appointment was ultra vires the section as being disproportionate in its effects and consequences.

12. On behalf of the respondents, Mr. Frank Clarke SC, while accepting that this court had no jurisdiction to adjudicate on a constitutional issue which had not been first determined in the High Court, submitted that the court should nonetheless proceed to determine the other issues dealt with in the High Court which were the subject of an appeal to this court. In the event of the applicants’ appeal succeeding and the respondents’ appeal being dismissed, the constitutional issue would not have to be determined by either the High Court or this court. He also submitted that, while the judgment of the learned High Court judge might not have dealt with in detail with all the grounds relied on by the applicants on the other issues which arose, it was

13. This court has made it clear on more than one occasion that where the issues between the parties can be determined and finally disposed of by resolution of an issue of law other than constitutional law, the court should proceed to determine that other issue First. If that determination disposes of the case, then the court should refrain from expressing any view on any constitutional issue that may have been raised. (See Murphy v Roche [1987] IR 106 and Brady v. Donegal County Council [1989] ILRM 282).

14. In the present case, however, once the High Court had concluded that the appointment of the first named respondent was intra vires the 1990 Act, the applicants were entitled to have the issue as to the constitutionality of s.19 of the 1990 Act determined. That did not happen in the High Court and, as was conceded on behalf of the respondents, it is not now open to this court to determine an issue of constitutional law which has not been the subject of an adjudication in the High Court.

15. The argument advanced on behalf of the respondents - that the necessity for the constitutional adjudication would be avoided completely in the event of this court resolving all the other issues in the appeal in favour of the applicants - hardly carries much conviction when put forward on behalf of parties who are resisting all the grounds of appeal put forward on behalf of the applicants. If the course which they are urging on the court were to be adopted - of dismissing the applicants’ appeal and allowing the respondents’

16. I would allow the appeal, set aside the order of the High Court in its entirety and remit the proceedings to the High Court for a determination of the issues in respect of which leave to apply for judicial review was granted including, if necessary, the constitutional issue.