Dunnes wants challenge to Harney reheard

Dunnes Stores has asked the Supreme Court to direct a full rehearing in the High Court of the company's unsuccessful challenge to the appointment by the Tanaiste, Ms Harney, of an authorised officer to two of its companies.

The company wants to know whether there are limits on the Minister's power to require the production of documents from companies under Section 19 of the Companies Act 1990. It claims that issue, although argued at length before the High Court, was not determined by the court.

Last July, Mr Justice Kinlen delivered his High Court judgment on the challenge by Dunnes Stores Ireland Company, Dunnes Stores (ILAC Centre) Ltd and Mrs Margaret Heffernan to the appointment of Mr Gerard Ryan as authorised officer to the two companies. The action had been heard over 11 days last April.

Mr Justice Kinlen found that Ms Harney properly appointed the authorised officer, but also held that Mr Ryan had exceeded his powers in the manner in which he made demands for documents from the company.

Both sides indicated afterwards they were considering appeals, and the appeal by the companies and Mrs Heffernan, together with a cross-appeal by the State against the decision that Mr Ryan exceeded his powers, came before the Supreme Court yesterday.

The five-judge court was asked to determine, as a preliminary issue, whether it should hear the appeal or return the matter to the High Court to be reheard in full. After submissions from both sides, Ms Justice Denham, presiding, said the court was reserving judgment on the preliminary matter.

Mr Adrian Hardiman SC, for Dunnes, argued that the High Court had failed to determine several important issues. In particular, it had failed either to construct Section 19 of the Companies Act 1990 or determine the constitutionality of the section which obliges a person to produce books and documents and to answer questions on these. Dunnes had sought to establish whether a person who provided such books and documents to an authorised officer, and who answered questions on these, was entitled to claim privilege against self-incrimination. Mr Hardiman said the constitutional point had been argued at length but the matter was not determined in the judgment. The judge's silence on the issue could not be construed, as the Minister argued, as a rejection of the arguments advanced by Dunnes.

Counsel said the High Court had also failed to decide whether the reasons advanced by Ms Harney in December 1998 for her decision to appoint the authorised officer were the same reasons as in July 1998. The court had also failed to decide several important issues of fact, including whether the demand for documents served by Mr Ryan on Mrs Heffernan was crafted by the Minister or her officials.

Dunnes has argued throughout that the Minister was engaged in a wide-ranging investigation, or "trawl", which was not contemplated by Section 19.

Mr Frank Clarke SC, for the Tanaiste and the State, opposed the application to return the matter to the High Court. He said the judge had determined all the matters at issue. Counsel said the Supreme Court had enough material before it to decide the grounds of appeal advanced by Dunnes. While he conceded the High Court had not made a determination on the constitutionality of Section 19, he said that if the Supreme Court found in favour of Dunnes on any of the other grounds of appeal, that matter would not arise. He said that in order to decide whether the constitutional issue needed to be determined, the Supreme Court first needed to deal with the other points of appeal.

The Minister's case all along was that it was premature to deal with the constitutional point. If the matter was to go back to the High Court on the constitutional issue, it should go with the Supreme Court's view on whether other issues needed to be clarified and what these were. In its cross-appeal on the finding that Mr Ryan exceeded his powers in the manner in which he demanded documents from the companies, the State contends the finding was made by the High Court judge despite the absence of any such claim to that effect by the Dunnes companies.