The Gazette 1993

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-

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

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

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