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Recent Irish Cases
Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law,
Dublin City University.
The following case summaries have been reprinted from the
Irish Law
Times and Solicitors Journal
with the kind permission of the publishers.
Deane and Ors v Voluntary Health Insur-
ance Board Supreme Court 29 July 1992
IOMMERCIAL LAW - COMPETITION - 'UNDERTAK-
NG' - VOLUNTARY HEALTH INSURANCE BOARD -
WHETHER ENGAGED FOR GAIN IN PROVISION OF A
SERVICE - WHETHER 'GAIN' SHOULD BE EQUATED
WITH 'PROFIT' - STATUTE - INTERPRETATION - Vol-
jntary Health Insurance Act 1957, s.4 - Competition Act
1991, s.3(1)
The plaintiffs instituted proceedings claim-
ng that the defendant Board had acted in
Dreach of its duties to the plaintiffs under s.5
)f the 1991 Act. The 1991 Act prohibits the
estriction of competition and the abuse of
Jominant positions by analogy with Articles
Í5 and 86 of the Treaty of the European
iconomic Community. The Act applies to
undertakings', defined in s.3 as, inter alia,
iny person 'engaged for gain' in the produc-
ion of goods or the provision of a service.
The defendant argued, inter alia, that it was
lot an undertaking within s.3 of the 1991
V:t since under s.4 of the 1957 Act it was
equired to fix subscriptions for health insur-
ince cover so that its revenue for any year is
ufficient, but only sufficient, to meet the
:harges properly chargeable to revenue,
"his issue was tried as a preliminary point of
aw. In the High Court, Costello J held that
he defendant was not an undertaking within
.3 of the 1991 Act. On appeal HELD by the
lupreme Court (Finlay CJ, Hederman and
gan JJ) allowing the appeal: (1) the word
gain' in s.3 of the 1991 Act connoted some-
hing obtained or acquired, and was not
imited to pecuniary gain; still less could it
>e equated with the word 'profit', and if the
)ireachtas had intended to refer only to
indertakings engaged in making profits it
/ould unambiguously have so stated.
Re
\rthur Average Association
(1875) LR 10Ch
kpp 542 approved; (2) the true meaning of
.3 of the 1991 Act was that it related to
ctivities carried on or a service supplied in
eturn for a charge or payment, which would
xclude a charitable association which spent
loney without any charge or payment; and
lat, accordingly, the defendant came within
ie 1991 Act. Per
curiam
: even if the word
gain' was ambiguous, the court would be
ntitled to have had regard to the Long Title
f the 1991 Act; and having regard to the
bject of adopting by analogy Articles 85
nd 86 of the Treaty of the European Eco-
omic Community, the argument by the
efendant would severely restrict the appli-
ation and extent of the 1991 Act in a
lanner unintended by the Oireachtas.
tesmond and Dedeir v Glackin, Minister
)r Industry and Commerce and Ors (No.2)
ligh Court 25 February 1992; Supreme
ourt 30 July 1992
OMPANY I AW - INSPECTOR - EXTENT OF POWERS
WHETHER ENTITLED TO INVESTIGATE ACTIVITIES
iF COMPANY INCORPORATED (HJTSIDF STATF -
(CHANGE CONTROl WHFTHER MINISTER FOR
NANCE FNTITI ED TO TRANSMIT EXCHANGE CON-
TROL INFORMATION FROM CENTRAL BANK TO
OTHER GOVERNMENT MINISTER - CONSTITUTION -
TRIAL OF OFFENCES - FAILURE TO ANSWER QUES-
TIONS PUT BY INSPECTOR - HIGH COURT ENTITLED
TO PROCEED AS IF CONTEMPT OF COURT - WHETHER
VALID - SEVERABILITY - Exchange Control Act 1954,
s.28 - Official Secrets Act 1963, s.4 - Central Bank Act
1989, s. 16 - Companies Act 1990, ss.9, 10(5), 10 (6), 14
- Constitution, Article 38.1
The first respondent (the inspector) had been
appointed by the second respondent as an
inspector pursuant to s. 14 of the 1990 Act to
investigate the purchase of a site in Dublin
for over 4m and its sale less than one year
later to Bord Telecom Eireann for over 9m.
The site had been bought by a company,
United Property Holdings Ltd (UPH), in
which the first applicant (Mr Desmond) had
a beneficial interest. The site then became
vested in Chestvale Properties Ltd, a sub-
sidiary of UPH. Chestvale was then sold to
Delion Investment Dealings Ltd, a Cypriot
company, which in turn was sold to Hoddle
Investments Ltd. The main shareholder in
Chestvale and Delion appeared to be one
Pat Doherty. Finance for this aspect of the
transaction was provided by Freezone In-
vestments Ltd, a company registered in the
Isle of Man and controlled by one Colin
Probets, a resident of Jersey. Finally, Hoddle
sold the site to Telecom. The purpose of the
inspector's investigation was to examine in
particular the beneficial ownership of
Chestvale and Hoddle. In the course of his
inquiries, the inspector questioned Mr
Desmond extensively. He put to Mr
Desmond certain exchange control infor-
mation which had been given to the Central
Bank concerning the Telecom transaction.
The inspector had sought this information
from the second respondent, who in turn
had requested the Minister for Finance to
seek it from the Central Bank. The appli-
cants instituted judicial review proceedings
challenging the validity of the inspector's
appointment and also various aspects of the
investigation. A contempt of court motion
arose from the interim application for leave
to seek judicial review: see
Desmond and
Dedeir v Glackin, Minister for Industry and
Commerce and Ors
(High Court, 9 January
1992) (below). HELD by O'Hanlon J declin-
ing the relief sought, except in relation to the
constitutional validity of s.10(5) of the 1990
Act: (1) in view of the widespread knowl-
edge of the matters of public concern which
led to the appointment of the inspector
under s. 14 of the 1990 Act, the Minister was
not required to specify in the warrant of
appointment the nature of the public inter-
est which led to the appointment; (2) al-
though the inspector had questioned the
first applicant on his connection with cer-
tain companies which were incorporated
outside the State and thus were not 'related'
to Chestvale or Hoddle within s.9 of the
1990 Act, and although the inspector was
entitled to seek approval from the Minister
under s.9 of the 1990 Act to inquire into
companies which were not 'related' but had
not done so in the instant case, the inspector
had not acted ultra vires in pursuing this
aspect of the transaction because the first
applicant accepted that he had been in-
volved in the transactions involving these
companies, though not financially involved
in them; (3) the Minister for Finance had
been entitled to seek the exchange control
information from the Central Bank under
s. 19 of the 1989 Act, since the Central Bank
acted as agent for the Minister in the collec-
tion of exchange control information under
s.28 of the 1954 Act; and the Minister was,
in turn, entitled to pass on such information
to another Minister and did not act in breach
of s.4 of the 1963 Act in so doing; (4) the
applicants' common law right to privacy,
which in the instant case was probably co-
extensive with the constitutional right to
privacy, was not breached in the instant
case through the communication of the
exchange control information from the Cen-
tral Bank to the inspector since such com-
munication related entirely to the better
performance of public functions by public
bodies and the protection of a free society
would not be better served by the operation
of affairs of State in water-tight compart-
ments.
Marcel v Commissioner of Metro-
politan Police
[199111 All ER 845; [1992) 1
All ER 72 discussed; (5) in relation to s. 10(5)
of the 1990 Act, which authorised the High
Court to try a person for refusal to answer
questions put by an inspector as if the per-
son was in contempt of court, Mr Desmond
had locus standi to challenge the constitu-
tional validity of s. 10(5) since the inspector
had already invoked s.10 against Mr
Desmond and there was also the likelihood
that, having regard to the number of ques-
tions addressed to him by the inspector, the
powers in s.10 might be used in the future
against him; (6) s.10(5) of the 1990 Act was
repugnant to Article 38.1 of the Constitution
in that it permitted the High Court to try
summarily an offence which was not minor
in character, but,this, part of s.10 could be
severed from the remainder thus leaving
intact the provisions in s.10(6) of the 1990
Act which provided an alternative mecha-
nism for a person who refused to answer
questions. In re
Haughey
11971] IR 217
applied. On appeal, the issues raised were
more confined than those in the High Court.
HELD by the Supreme Court (Finlay CJ,
Hederman, McCarthy, O'Flaherty and Egan
JJ) confirming the challenged findings of the
High Court: (1) the High Court had been
correct in finding that the first applicant had
locus standi to challenge the constitutional
validity of s. 10(5) of the 1990 Act; (2) s. 10(5)
of the 1990 Act was repugnant to Article
38.1 of the Constitution for the reasons
given by the High Court, and that this part of
s.10 could be severed from the remainder
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