THE inspector into the affairs of CountyGlen, Mr Frank Clarke SC, will not have to give evidence as a witness in the case the company is taking against members of the Carway family, the High Court ruled yesterday.
Mr Clarke, in the report of his inspection presented to the High Court in October 1994, had found that the transfer of £1.1 million of the company's money in 1992 without shareholder approval was fraudulent.
CountyGlen's original statement of claim was struck out by the High Court last April on the grounds that allegations of fraud made against the defendants were not pleaded with sufficient particularity or were otherwise defective.
Last July, the company was given leave to deliver an amended statement of claim. The High Court judge said the amended claim met the objections taken to the original.
Yesterday, the case was scheduled to begin. However, a preliminary issue on the admissibility of the inspector's report started and is expected to take at least two days.
Earlier, Mr Maurice Collins, counsel for Mr Clarke, applied to Miss Justice Laffoy to have set aside a subpoena sent to Mr Clarke by the defendants. He said no evidence would be taken in respect of any of the substantive issues.
Mr Clarke was not necessary to proving the report. The subpoena said Mr Clarke was necessary to prove certain transcripts If they needed to be proved, it was the person who took the transcript, the stenographer, who would do it.
The inspector was not a party to the proceedings. It was inappropriate to have him called as a witness and having to defend himself against the Carways.
Dr Michael Forde SC, for the Carways, said Mr Clarke's presence was required to prove the report. The transcript of the report showed a strong indication that it dealt with privileged information.
The Carways contended the report was inadmissible because the foundations of it were that there was cooperation and assistance provided by a solicitor and this, was in breach of legal privilege.
Another ground was the participation of two ministers and officials. It would be different if officials played a minor role but they asked many of the questions in the report. The assistants became also co inspectors. In this examination and report, one had the executive playing a vital role in gathering evidence.
The report was inadmissible and for that reason Mr Clarke's evidence was required. Privileged information was improperly given to the inspector and improperly used by the inspector, Dr Forde said.
Miss Justice Laffoy said she was satisfied the subpoena served by the Carways had not been issued bone fide for the purpose of giving evidence. She suspected it was issued for the purpose of frustrating orders that she had made previously. It was for the company to prove the report. She proposed setting aside the subpoena but reserved the court's position on it.
On the preliminary issue, Mr James Connolly SC said Mr Clarke's report was admissible. It was capable of being used by all parties, not just CountyGlen, and in that respect there was parity of rights between all the parties.
The hearing continues today.
