Monday 5 December 2016

High Court dismisses D2 challenge to Clerys inspectors

Tim Healy

Published 25/10/2016 | 18:49

Clerys clock. Pic Frank McGrath
Clerys clock. Pic Frank McGrath

The High Court has dismissed a challenge brought against powers used by inspectors investigating the collective redundancies of workers at the iconic Clery's Department Store.

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Mr Justice Michael Twomey dismissed proceedings Investment Company D2 Private Ltd and its director and owner Deidre Foley after inspectors appointed by the Workplace Relations Commission (WRC) entered the firm's offices at Harcourt Terrace Dublin in May.

The inspectors were appointed after 460 workers lost their jobs on June 12, 2015.

The workers were made redundant hours after Clerys was sold to a joint venture called Natrium, a joint venture made up of Cheyne Capital Management and D2 by its previous owners, the US Gordon Brothers group.

As part of their investigation inspectors, accompanied by members of An Garda Siochana, removed items including a laptop computer and a number of documents, including invoices from D2's offices. 

Following the seizure Ms Foley and D2 brought proceedings claiming the inspectors and the WRC were not entitled to enter the office and take the materials.

They claimed the seizure and of "privileged and confidential information" from D2's office by the inspectors was "wholly unlawful". They said they were never the employers of the Clery's workers. 

A company called OCS Operations Ltd was at all times the employer and the decision to make the workers redundant was made independently of D2 and Ms Foley, they argued.

The action was against the Minister for Jobs, Enterprise and Innovation, which has responsibility for the Commission. They  opposed the application, and argued the challenge should be dismissed.

They argued the decision to enter D2's offices was a legitimate one made in the public interest.

In his judgment dismissing the action Mr Justice Twomey said the court "did not see any basis for interfering" with the investigation.

The Judge said the case was not about matters including if D2 or Ms Foley were liable for any person who acted as officers or managers of OCS Operations the company that had owned Clerys, in relation to any alleged offences surrounding the redundancies.

Similarly it was not about whether evidence obtained by the inspectors following the seizure is admissible in any criminal trial. The court did not have to determine the merits of the "very forceful arguments" made by Ms Foley and D2, he added.

The case was "much more about a preliminary issue" if a court can interfere in the investigative process by an agency of the state before the institution of criminal proceedings, he said.

The threshold for a court to interference in any investigation being conducted by agents of the state is "exceptionally high." In this particular case the judge said he was satisfied "that high standard" "had not been meet", he said.

The Judge said it was "premature" for the applicants to seek to interfere in the investigation whether they have any role in the alleged offences surrounding the Clery's redundancies.

The court's decision did not mean Ms Foley's and D2 arguments were without merit, however judicial review proceedings were not the appropriate forum where those arguments should be made.

The appropriate place was in a criminal trial if one takes place following the investigation, he said. The Judge said that there are good principles for not interfering with such investigations.

The Judge said if somebody suspected of being involved in a criminal offence could interfere or even prevent an investigation that would represent "a very significant restriction to the criminal powers of the state."

In such a scenario the courts would be "filled with persons, or at least persons with the financial means, seeking to prevent investigations into their alleged criminal conduct."

There was "no certainly" materials on a laptop taken from D2's offices by the inspectors were privileged. D2 and MsFoley had claimed material on the laptop was privileged and was inadmissible, he said.

The Judge said he was not prepared to make an order preventing the inspectors from making use of or return these material to the applicants.

The Judge added he was not prepared to award damages to D2 and Ms Foley.

The matter was adjourned to November 8.

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