Since the departure of Mr Ben Dunne from Dunnes Stores, the group has operated a proper and appropriate system of control and management, Ms Margaret Heffernan, managing director of the Dunnes Stores group, told the High Court yesterday.
In an affidavit, Ms Heffernan claimed that the driving force behind the appointment by the Minister for Enterprise and Employment, Ms Harney, of an authorised officer to two Dunnes companies seemed to be investigation of "other parties".
Ms Heffernan also claimed privilege for a Price Waterhouse report commissioned by the company's directors into the stewardship of the company by Mr Ben Dunne.
On the fourth day of Dunnes' challenge to the authorised officer's appointment to two of its companies, lawyers for Dunnes initially refused and then agreed to hand to Mr Justice Kinlen that report, on an undertaking by State lawyers not to seek the document.
The report was drawn up for the purpose of defending litigation initiated by Mr Dunne after he was removed as chairman and executive director of the company and after he made allegations about payments from the company to a number of politicians and political parties.
In the event, the proceedings were settled. Dunnes is claiming that the Price Waterhouse report is a privileged document, although the group has previously given the report to the McCracken and Moriarty Tribunals and to Judge Gerard Buchanan. Dunnes Stores Ireland Ltd, Dunnes Stores Ilac Centre Ltd and Ms Heffernan, a director of both companies, are challenging the decision of Ms Harney to appoint Mr Gerard Ryan as authorised officer to investigate the books and records of the companies.
Yesterday, Mr Adrian Hardiman SC, with Mr Richard Law Nesbitt SC, for Dunnes, said he was most reluctant to hand the Price Waterhouse report into court if this meant the Minister and her authorised officer would have access to it.
Mr Eoghan Fitzsimons SC, for the respondents, said this assertion of unwillingness to trust the Minister or her authorised officer was part of the verbal weaponry used by Dunnes to justify non-compliance. He did not accept that the report was a privileged document.
Mr Hardiman said there was no doubt the respondents would like to get their hands on the report. Mr Justice Kinlen said the report could be handed in at the end of the hearing. He did not want to take it into protective custody until he had to.
The offer to hand in the report was then made by Mr Hardiman on the assurance by Mr Fitzsimons that he would not seek the document during the course of the proceedings.
Earlier, there were clashes between Mr Hardiman and Mr Fitzsimons when the latter asked if Mr Hardiman was amending pleadings to advance his case that the Minister was effectively guilty of fraud.
Mr Hardiman said he had never used the word `fraud' in support of his case. He stood over the pleadings, which he did not intend to amend. While he was alleging mala fides (bad faith), that did not correspond to fraud.
Mr Hardiman then resumed reading Ms Heffernan's affidavit, in which she alleged the RTE newsroom had been contacted by persons acting on behalf of the Minister to alert it to judicial review proceedings challenging the the appointment of the authorised officer.
Material was being routinely published in newspapers which could only have had its origin in investigations being undertaken by the Minister's Department, she said. There was a manifest risk of further disclosure of information relating to Dunnes unless the Minister was restrained by the court.
Ms Heffernan said the leaking of such material suggested that her misgivings about the motives of the Minister and about the confidentiality of sensitive records were well-founded. Little reassurance had been given to the company that information furnished to Ms Harney could or would be kept confidential.
The hearing resumes next Tuesday.
