448 / 462
GAZETTE
thus leaving intact the provisions in s.10(6)
of the 1990 Act, with a further minor dele-
tion from s.!0(6). In
re Haughey
[1971] IR
217 and
Maher v Attorney General
[1973]
IR 140 applied; (3) the inspector was enti-
tled to question Mr Desmond concerning
companies which were incorporated out-
side the State and thus were not 'related' to
Chestvale and Hoddle within s.9 of the
1990 Act, since otherwise the powers of
investigation under s.14 of the 1990 Act
would be largely inoperable, and thus s.9 of
the Act was irrelevant to the instant case.
Lyons and Ors
v
Curran
(High Court, 27
May 1992) (below) approved; (4) the High
Court had correctly interpreted s.14 of the
Central Bank Act 1989 in relation to the use
by the inspector of the exchange control
information obtained from the Central Bank.
Probets and Freezone Investments Ltd v
Glackin, Minister for Industry and Com-
merce and Ors High Court 26 February
1992; Supreme Court 30 July 1992
COMPANY LAW - INSPECTOR - EXTENT OF POWERS
- WHETHER ENTITLED TO INVESTIGATE ACTIVITIES
OF COMPANY INCORPORATED OUTSIDE STATE -
STATUTORY DECLARATION - WHETHER INSPECTOR
ENTITLED TO SEEK TO EXAMINE DEPONENT UNDER
OATH AND TO SEEK CORROBORATIVE EVIDENCE -
Companies Ac! 1990, s.14
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 precise circumstances are described in
Desmond and Dedeir v Glackin,
Minister
for Industry and Commerce and Ors (No. 2)
(High Court, 25 February 1992; Supreme
Court, 30 July 1992) (supra). The applicants
provided the finance for aspects of the
Telecom transaction. The first applicant was
a resident of Jersey. The applicants insti-
tuted judicial review proceedings challeng-
ing the validity of the inspector's appoint-
ment and also various aspects of the inves-
tigation. Many ofthe grounds were identical
to those in the
Desmond (No.2)
case,
supra,
and were dismissed
for
the same reasons.
The applicants also argued that the inspec-
tor had acted ultra vires in seeking to exam-
ine the first applicant under oath after he
had sworn a statutory declaration denying
that, apart from providing certain finance,
he or any company of which he had control
had a financial interest in the Telecom trans-
action. HELD by O'Hanlon J and affirmed
by the SupremeCourt (Finlay CJ, Hederman,
McCarthy, O'Flaherty and Egan JJ) in dis-
missing the application for judicial review:
the statutory declaration was proof that the
first applicant was a resident of Jersey, that
the second-named company was registered
in the Isle of Man and that the first applicant
had volunteered certain information to the
inspector; but it was not proof of all the
averments in the declaration, and the in-
spector was not required to accept the aver-
ments as prima facie evidence of their truth
for the purposes of his investigation under
s.14 of the 1990 Act; and in light of the
information available to the inspector he
was entitled to investigate whether the prof-
its made on the financing of the transaction
had passed from the applicants in the instant
case to any other party, including the appli-
MAY 1993
cants in the Desmond (No.2) case (supra).
Chestvale Properties Ltd and Hoddle In-
vestments Ltd v Glackin High Court 7 Feb-
ruary 1992 and 10 March 1992
COMPANY LAW - INSPECTOR - EXTENT OF POWERS
- WHETHER ENTITLED TO INVESTIGATE ACTIVITIES
OF COMPANY INCORPORATED OUTSIDE STATE -
CONSTITUTION - PROHIBITION AGAINST RETRO-
SPECTIVE CRIMINAL LAW - INVESTIGATION OF CON-
" TRACT ARRANGEMENTS MADE BEFORE COMMENCE-
MENT OF LEGISLATION-WHETHER UNJUST ATTACK
ON PROPERTY RIGHTS - Companies Act 1990, s.14 -
Constitution, Articles 15.5, 40.3, 43
The respondent (the inspector), a solicitor,
had been appointed by the Minister for
Industry and Commerce as an inspector
pursuant to s. 14 of the 1990 Act to investi-
gate 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
precise circumstances are described in
Desmond and Dedeir v Glackin,
Minister
for Industry and Commerce and Ors (No.2)
(High Court, 25 February 1992; Supreme
Court, 30 July 1992) (supra). The applicants
sought judicial review of the investigation
and the appointment of the respondent on a
number of grounds. These related to the
investigation into bank accounts held or
controlled by the applicants and also into
the activities of foreign companies involved
in the Telecom transaction. HELD by Murphy
J dismissing the claim for judicial review: (1)
having regard to the fact that the 1990 Act
substantially expanded on inspection pow-
ers contained in previous legislation and
that these powers had been repealed by the
1990 Act, the correct inference was that the
1990 Act was retrospective in effect in that
pre-1990 transactions are exposed to the
investigative powers contained in the 1990
Act; (2) the 1990 Act did not infringe Article
15.5 of the Constitution, since it did not
declare any act to be an infringement ofthe
law which was not so at the date of its
commission; (3) the 1990 Act did not consti-
tute an unjust attack on the applicants'
property rights under Articles 40.3 or 43 of
the Constitution since the extension of pre-
vious powers of inspectors by the 1990 Act
was a marginal intrusion on their property
rights in relation to any bank transactions
effected before the 1990 Act came into
effect, and although in that sense the 1990
Act was retrospective its operation was fully
justifiable under Article 43; (4) since the
director of one oftheapplicants, Mr Doherty,
had received and continued to receive legal
advice from the firm of solicitors of which
the inspector was a partner, there might be
the appearance of bias if the inspector was
acting in a quasi-judicial capacity under the
1990 Act; however, in the instant case it did
not appear, on the evidence to date, that the
inspector would be required to make any
findings of a judicial nature, so that any
claim relating to bias was premature, and
this brought into doubt the locus standi of
the applicants to raise bias.
O'Neill v
Beaumont Hospital Board
[ 1990] ILRM 419
and
In re Pergamon Press Ltd \
19711 Ch 388
discussed; (5) whatever problems might arise
in the future because of the connection
between Mr Doherty and the inspector's
firm could not call into question the validity
of the inspector's appointment under the
1990 Act; (6) the request by the inspector to
the applicants' banks to provide informa-
2
tion concerning Delion Investments Ltd as a
'related'company within s.9 ofthe 1990 Act
was not authorised, since the inspector had
not made the necessary request to the Min-
ister for Industry and Commerce to inquire
into Delion; but this did not affect the enti-
tlement ofthe inspector to investigate Delion
under s.14 of the 1990 Act since although it
was a foreign registered company it was
connected with the Telecom transaction,
and accordingly the banks were required to
comply with the request for information.
Glackin v Trustee Savings Bank and Anor
High Court 10 April 1992
COMPANY LAW - INSPECTOR - EXTENT OF POWERS
- WHETHER FINANCIAL INSTITUTION EMPOWERED
TO CONSULT CLIENT BEFORE COMPLYING WITH
REQUEST FOR INFORMATION FROM STATUTORY
INSPECTOR - Companies Act 1990, ss.10, 14
The plaintiff (the inspector) had been ap-
pointed by the Minister for Industry and
Commerce 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 precise circum-
stances are described in
Desmond and
Dedeir v Glackin, Minister for Industry and
Commerce and Ors (No.2)
(High Court, 25
February 1992; Supreme Court, 30 July 1992)
(supra). The plaintiff sought information from
the defendant bank in relation to money
which had been placed with the bank by or
under the control of a company concerned
in the Telecom transaction. Although the
bank was willing to co-operate with the
inspector, it declined to reply to all queries
from the inspector on the ground that it
should consult its client prior to providing
confidential information to him. On the
plaintiff's application to the Court under
s. 10 of the Act requiring the Court to inquire
into the hank's failure to comply with his
request HELD by Costello J: the bank was
required to comply fully with the request of
the inspector in the instant case, and it must
be taken that the 1990 Act overrode any
questions of confidentiality or any require-
ment to consult with a client prior to com-
plying with the request of an inspector ap-
pointed under statute.
Per
Costello J: the
Court was entitled to exercise its powers
under s.10(6) of the 1990 Act, taking into
account the constitutional infirmity in s.10(5)
found in
Desmond and Dedeir v Glackin,
Minister for Industry and Commerce and
Ors (No.2)
(High Court, 25 February 1992)
supra.
Lyons and Ors v Curran High Court 27 May
1992
COMPANY LAW - INSPECTOR - EXTENT OF POWERS
- WHETHER ENTITLED TO INVESTIGATE ACTIVITIES
OF COMPANY INCORPORATED OUTSIDE STATE -
Companies Act 1990, ss.9, 14
The respondent (the inspector) had been
appointed by the Minister for Industry and
Commerce as an inspector pursuant to s.14
of the 1990 Act to investigate the purchase
in December 1988 of 49% ofthe shares in
Sugar Distributors Ltd, through a company
called Gladebrook Co Ltd, and their resale
to Siuicre Eireann CPT in February 1990 at
a very substantial profit. 22% of the pro-
ceeds of the sale went to a company called
Talmino Ltd, a Jersey registered company.