The Gazette 1993

GAZETTE

MAY 1993

The inspector's report concluded that the

then managing director of Siuicre Eireann

CPT, a Mr Comerford, was the beneficial

owner of Talmino Ltd and that the appli-

cants in the instant case had no beneficial

interest in Talmino. The applicants had is-

sued proceedings against Mr Comerford

claiming to be the beneficial owners of

Talmino. By virtue of s.22 of the 1990 Act,

the inspector's report and any opinion ex-

pressed in it are admissible in any proceed-

ings as evidence of the facts contained

therein, unless the contrary is proved, and of

the opinion of the inspector. The applicants

applied to quash the inspector's report on

the ground that the inspector had no power

to investigate Talmino as it was a foreign

registered company. HELD by Blayney J

dismissing the claim: the inspector was en-

titled to investigate Talmino since it was

accepted that Talmino was entitled to 22%

of the proceeds of the sale of the shares in

Sugar Distributors Ltd; the requirement un-

der s.9 of the 1990 Act that the inspector

seek the permission of the Minister for In-

dustry and Commerce to investigate a 're-

lated' company would seem to relate to

situations in which the inspector considered

that another company might be involved in

the transaction under investigation, but in

the instant case, it was clear that Talmino

was certainly involved in the transaction

and thus s.9 was not relevant.

Minister for Justice v Siuicre Eireann CPT

and Ors High Court 1 May 1992

COMPANY LAW - INSPECTOR - WHETHER STATE

ENTITLED TO RECOVER.COSTS OF INVESTIGATION

BY INSPECTOR - INVESTIGATION INTO STATE COM-

PANY - WHETHER PRIVATE PERSONS SHOULD BEAR

COST OF INVESTIGATION - WHETHER FOREIGN

COMPANY MAY BE REQUIRED TO PAY COSTS OF

INVESTIGATION - Companies Act 1990, ss. 8, 13

The Minister for Industry and Commerce

had successfully applied to the High Court

pursuant to s.8 of the 1990 Act for the

appointment of two persons to act as in-

spectors under the 1990 Act to further inves-

tigate the purchase in December 1988 of

49% of the 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.

An inspector had previously been appointed

by the Minister under s.14 of the 1990 Act in

relation to this transaction: see

Lyons and

Ors v Curran

(High Court, 27 May 1992)

(supra). The costs of the inspection under s.8

of the 1990 Act were approximately 1.15m.

The Minister for Justice applied under s.13

of the 1990 Act to recover these costs (less

VAT) from the defendants, primarily the

companies whose connection with the trans-

action had Jreen investigated. In addition,

the Minister also sought to recover against

Talmino Ltd, a Jersey company which was

entitled to 22% of the proceeds of the sale of

the Sugar Distributors shares. HELD by Lynch

j dismissing the application: (1) prima facie

the Minister should J)e entitled to recover

the costs of an investigation under the 1990

Act; (2) however, in the instant case, at the

time of the events which led to the investi-

gation under the 1990 Act, the State was the

sole shareholder in Siuicre Eireann CPT,

and the State had subsequently sold 70% of

its shareholding; and in those circumstances

in would not be just and equitable to order

that private persons should bear the cost of

an investigation into what was a company

owned at the time in question by the State;

(3) Talmino did not come within the terms of

s. 13 of the 1990 Act since it was not one of

the companies under investigation; and in

addition it was not carrying on a business in

the State, but had merely purchased shares

in Sugar Distributors through Gladebrook.

McKinley v Minister for Defence and Ors

Supreme Court 27 July 1992

CONSTITUTION - EQUALITY - LOSS OF CONSOR-

TIUM - CLAIM BY WIFE FOR LOSS OF HUSBAND'S

SERVICES-WHETHERCOMMON LAW ACTION CON-

FINED TO CLAIM BY HUSBAND FOR LOSS OF WIFE'S

SERVICES - WHETHER CARRIED FORWARD BY CON-

STITUTION - WHETHER COURTS SHOULD REMOVE

DISCRIMINATION BY ALLOWING WIFE TO CLAIM -

Constitution, Articles 40.1, 41, 50 - Civil Liability Act

1961, s.35(2)(b)

The plaintiff's husband was severely injured

in the scrotal region while serving as a

memh>erofthe Defence Forces. She claimed

damages for loss of consortium arising from

these injuries. The defendants claimed that

the plaintiff's statement of claim disclosed

no cause of action on two grounds. First,

that the common law action for loss of

consortium was confined to a claim by a

husband for loss of his wife's services; sec-

ond that the claim for loss of consortium had

not survived the enactment of the Constitu-

tion since it resulted in a discriminatory

treatment of women contrary to Article 40.1.

In the High Court, Johnson J declined to

strike out the action: Irish Times LR, 14 May

1990. On appeal by the defendants HELD

by the Supreme Court (Finlay CJ, Hederman,

McCarthy, O'Flaherty and Egan JJ) dismiss-

ing the appeal and remitting the action to

the High Court: (1) the action for loss of

consortium was well-established in com-

mon law, but was confined to a claim by the

husband for loss of the services of his wife.

Spaight v Dundon

[19611 IR 201 applied;

(2) (Hederman, McCarthy and O'Flaherty JJ;

FinlayCJ and Egan J dissenting) the common

law limitation was inconsistent with the

plaintiff's rights under Articles 40.1 and 41

of the Constitution; but, in examining an

existing common law heading of claim, the

courts were not confined to declaring the

existing rule invalid for inconsistency with

the Constitution; and having identified the

inequality, the courts had jurisdiction to

declare that the plaintiff had an equal right

to claim for loss of consortium.

Semble:

the

argument by the Attorney General that

s.35(2)(b) of the 1961 Act was invalid in

view of its recognition of the common law

claim for consortium was difficult to recon-

cile with the Attorney's obligation to uphold

the constitutional validity of legislation. Per

O'Flaherty J: the level of damages in a claim

for loss of consortium might J)e assessed in

the same way as a fatal injuries claim by a

spouse under the 1961 Act.

Desmond and Dedeir v Glackin, Minister

for Industry and Commerce and Ors High

Court 9 January 1992

CONTEMPT OF COURT - SUB JUDICE - SCANDALIS-

ING OF COURT - COMMENTS MADE ON ORDER OF

COURT GRANTING INJUNCTION - WHETHER IN

CONTEMPT - MATTERS INVOLVED SUBJECT TO PUB-

LIC COMMENT - CONSTITUTION - FREEDOM OF

EXPRESSION - European Convention on Human Rights

and Fundamental Freedoms, Article 10 - Constitution,

Article 40.3

The applicants had instituted judicial re-

view proceedings challenging the validity

of the appointment of the first respondent as

an inspector pursuant to the Companies Act

1990. The appointment had been made by

the second respondent to investigate the

purchase of a site in Dublin for over 4m and

its sale one year later to Bord Telecom

Eireann for over 9m. This transaction had

become the subject of a large amount of

public comment prior to the appointment of

the inspector, and the first applicant had a

t>eneficial interest in some of the companies

involved in the sale. On an ex parte applica-

tion to the High Court (Flood J), the appli-

cants obtained leave to seek judicial review

of the inspector's appointment and also

mandatory interim relief prohibiting the in-

spector from seeking to question the first

applicant further on his involvement in the

transactions leading to the sale of the site to

Telecom Eireann. The affidavit grounding

the application alleged that the respondents

had obtained certain information from the

Central Bank in breach of the Central Bank

Acts and the interim relief included an in-

junction prohibiting the use of any such

information. The first respondent responded

to a request for comment from the media

and expressed surprise that the applicants

had sought such relief. The second respond-

ent, the Minister for Industry and Com-

merce, gave an extensive live radio inter-

view to Radio Telefis Eireann stating, inter

alia, that he was amazed by the application

for interim relief, agreed that the effect of the

injunction was that the High Court had

facilitated the blocking of the inspector's

investigation under the 1990 Act, and that

he hoped that the Supreme Court would

provide the same facility to him (the Minis-

ter) if an appeal were brought. He also

criticised the High Court for accepting the

averment in the applicants' grounding affi-

davit that he (the Minister) had acted in

breach of the Central Bank Acts. The appli-

cants sought to have the respondents at-

tached for contempt of court. The gravamen

of the application concerned the Minister's

radio interview. HELD by O'Hanlon J de-

clining to attach the respondents: (1) the

offence of scandalising the courts had not

been established since, although made aJx>ut

pending proceedings, they were made about

an actual decision made at an early stage of

the judicial review proceedings in question;

and while the Minister's language was un-

fortunate, he should be allowed a degree of

latitude and had not exceeded the Jx>unds

of fair and permissible criticism. Dicta in

The State(DPP) v Walsh

[19811 IR 412 ap-

plied; (2) as to whether the sub judice rule

had t>een breached, it was unlikely that the

comments in the instant case were intended

to make it more difficult for the judge hear-

ing the judicial review to made a fair deci-

sion, and thus a risk to the administration of

justice had not t>een established. Dicta in

Attorney General for New South Wales v ).

Fairfax & Sons Ltd

|1980] 1 NSWLR 362

applied; (3) as to whether contempt had

Jjeen committed in the sense of prejudging

an issue in pending proceedings or by pillo-

rying one of the parties to those proceed-

ings, the affidavit grounding the application