The Gazette 1993

GAZETTE

MAY 1993

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 3

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. 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 Minister for Justice v Siuicre Eireann CPT and Ors High Court 1 May 1992

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