Dunnes challenge to appointment of authorised officer is adjourned

The latest stage of Dunnes Stores's long-running legal challenge to the appointment of an authorised officer to examine the books and records of two of its companies has been adjourned at the High Court to October 17th.

The court also continued a stay restraining the implementation of a demand by the officer, Mr Cyril Houlihan, and the director of corporate enforcement, Mr Paul Appleby, to produce the records of Dunnes Stores Ireland and Dunnes Stores (Ilac Centre) Limited.

Mr Houlihan had asked the companies to produce the records by the evening of September 27th, but the stay on implementation of that demand was granted by Mr Justice Murphy to the companies just hours before that deadline.

Also on September 27th, Mr Richard Nesbitt SC, for Dunnes, was granted leave to take judicial review proceedings challenging the appointment of Mr Houlihan as authorised officer to the two Dunnes companies.

These proceedings are the latest stage in legal proceedings initiated in 1998 by Dunnes after the appointment of an authorised officer.

The appointment was made after the McCracken tribunal report concluded payments had been made by Mr Ben Dunne to former Taoiseach Mr Charles Haughey, former Fine Gael minister Mr Michael Lowry and two companies with which Mr Lowry was associated.

The case has been before the High Court and Supreme Court on many occasions since.

In February 2002, the Supreme Court ruled the appointment of the authorised officer was justified, but returned a constitutional issue to the High Court for determination.

In the High Court last June, Mr Justice Kearns declared unconstitutional Section 19.6 of the Companies Act which says that a statement made by a person to an authorised officer, in compliance with a requirement imposed by the Section, may be used in evidence against him.

The judge noted Section 19.6 had been replaced by a statutory provision, the Company Law (Enforcement) Act, 2001, which effectively "immunises" answers given to an authorised officer from use in any subsequent criminal proceedings (other than in respect of a refusal to answer or in the case of a false and misleading answer).

The Dunnes companies are seeking an order quashing a decision of Mr Appleby of July 26th last purporting to delegate inspection powers to Mr Houlihan.

They claim that, in the absence of regulations prescribing its continuation, the appointment of an authorised officer was terminated by the Act.