Tuesday 16 January 2018

High Court dismisses challenge over Clerys

D2 owner Deirdre Foley
D2 owner Deirdre Foley

Tim Healy

The High Court has dismissed a challenge brought against powers used by inspectors investigating the collective redundancies of workers at the iconic Clerys department store.

Mr Justice Michael Twomey dismissed proceedings by Investment Company D2 Private Ltd and its director and owner Deirdre 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 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 probe, inspectors, accompanied by members of An Garda Síochána, removed items including a laptop computer and a number of documents 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 was "wholly unlawful".

They said they were never the employers of the Clerys workers and 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.

The site of the former Clerys, where 460 people lost their jobs Picture: PA
The site of the former Clerys, where 460 people lost their jobs Picture: PA

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.

Mr Justice Twomey said the court "did not see any basis for interfering" with the investigation.

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 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, the court said.

The judge said if somebody suspected of 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".

There was "no certainty" materials on a laptop taken from D2's offices by the inspectors were privileged. 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 matter was adjourned to November 8.

Irish Independent

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