High Court rejects D2 challenge to Clerys inspectors

An investigation into collective redundancies at Clerys department store can proceed without High Court interference after a judge rejected a challenge by D2 Private and its owner Deirdre Foley to powers of the investigating inspectors.

Mr Justice Michael Twomey said he did not see “any basis” for interfering with the investigation or for making orders directing that a laptop and documents seized from the D2 offices at Harcourt Terrace last May be returned.

Investment company D2 Private Ltd and Ms Foley had disputed the powers of the inspectors’ to search the D2 offices and take the materials.

Workers

The inspectors were appointed by the Workplace Relations Commission after 460 workers at Clerys were made redundant on June 12th 2015 hours after Clerys was sold to the Natrium joint venture — comprising Cheyne Capital Management and D2 — by its previous owners, the US Gordon Brothers group.

As part of their investigation, the inspectors, accompanied by gardaí, removed items including a laptop computer and a number of documents, including invoices, from D2’s offices.

In High Court proceedings against the Minister for Jobs, Enterprise and Innovation, the WRC and the inspectors, Ms Foley and D2 argued there was no entitlement to enter the office and take the materials. They said they were never the employer of the Clerys workers and the seizure of “privileged and confidential information” from their offices was “wholly unlawful”.

OCS Operations Ltd was at all times the employer and the decision to make the workers redundant was made independently of D2 and Ms Foley, they argued.

The respondents argued the decision to enter D2’s offices was a legitimate one made in the public interest.

Judgment

In his judgment, Mr Justice Twomey said this case was not about whether D2 or Ms Foley were liable for any person who acted as officers or managers of OCS Operations in relation to any alleged offences surrounding the redundancies. Nor was it about whether evidence obtained by the inspectors following the seizure is admissible in any criminal trial, he said.

The court did not have to determine the merits of “very forceful arguments” made by Ms Foley and D2, he said.

This case was “much more about a preliminary issue” — whether a court can interfere in a State agency’s investigative process before any criminal proceedings are instituted.

The threshold for a court to interfere in any investigation conducted by agents of the State was “exceptionally high” and, in this particular case, that high standard “had not been met”.

It was “premature” for the applicants to seek to interfere in the investigation as to whether they have any role in the alleged offences surrounding the Clery’s redundancies, he said.

Applicants

His decision did not mean the applicants arguments were without merit but judicial review was not the appropriate forum for them. The appropriate place was in a criminal trial if one takes place following the investigation, he said.

There are good principles for not interfering with such investigations, he said. If a person suspected of being involved in a criminal offence could interfere or even prevent an investigation, that would represent “a very significant restriction to the criminal powers of the State”.

In such a scenario, the courts would be “filled with persons, or at least persons with the financial means, seeking to prevent investigations into their alleged criminal conduct.”

Addressing claims that material on the seized laptop was privileged and inadmissible, he said there was “no certainty” that material was privileged and he would not make an order preventing the inspectors making use of the material, or directing they return it. He was also not prepared to award damages to D2 or Ms Foley, he added.

The matter was adjourned to November 8th.