The State investigation into the purchase of construction services group Siteserv will ask the High Court for permission to refer to evidence put before the inquiry in private.
Brian Cregan, a High Court judge who is sole member of the commission of investigation, wants to be able to refer to certain evidence in responding to proceedings brought against the commission by Island Capital Management Ltd, a company controlled by Denis O'Brien.
Island led the 2012 acquisition of Siteserv, now called Actavo, by Millington, another company of Mr O'Brien's, in a deal involving State-owned Irish Bank Resolution Corporation (IBRC) writing off €110 million of the Siteserv debt when it was sold.
The commission was appointed by the Government in 2015 to investigate IBRC. Its terms of reference were amended in July 2016 to include the Siteserv transaction.
In its judicial review proceedings, Island is challenging a ruling by Mr Justice Cregan concerning the treatment of certain documents. It claims he erred in law and acted in breach of its rights, including to fair procedures, in finding section 31 of the Commission of Investigations Act permits him retain documents over which Island claims privilege and to review those documents on an ongoing basis as the commission proceeds, with a view to examining, and re-examining, the claim of privilege.
When the proceedings were mentioned before Mr Justice Seamus Noonan at the High Court on Monday, he was told by Imogen McGrath, for Island, that it had secured leave to challenge two matters that have arisen in the Siteserv investigation.
The commission wants to be able to refer in its responding affidavit to certain evidence given in private to it and her side would need to consider the contents of that affidavit, she said.
Depending on Island’s response to the commission’s affidavit, the commission’s motion may not be able to proceed to hearing on March 4th, she said.
Sarah Jane Hillery, for the commission, said it needs to rely on certain portions of evidence given in private but cannot do that without a direction from the court and was prepared to issue a motion for such directions returnable for March 4th.
Mr Justice Cregan is under a timeline to report by the end of March and is very keen to progress matters, she added.
John Rogers SC was appearing for three former officers of IBRC – Peter Rossiter, Tom Hunersen and Richard Woodhouse – who have received requests from the commission for evidence but have not yet given evidence.
His clients may be anxious to be heard as notice parties to Island’s judicial review but at this point, simply do not know enough to make a decision on what position to adopt. They wanted to see the papers for the judicial review, he said.
David McParland said he was appearing on behalf of Brian Harvey, chief executive and board member of Siteserv, who was adopting a similar position as that of Mr Rogers' clients.
Mr Harvey has given evidence to the commission and any challenge to its terms of reference may affect him but he wants to see the judicial review papers before deciding whether to seek to be joined as a notice party, counsel added.
Ms McGrath said Island had no difficulty with the papers being provided.
Mr Justice Noonan said the commission can issue its motion returnable for March 4th. He also directed that the other parties get the judicial review papers and granted them liberty to bring motions to be joined as notice parties if they wished to take that course.