Challenge to powers used in Clerys inquiry gets go-ahead

Investment firm D2 Private seeks order after inspectors enter offices and remove laptop

Clerys department store, O’Connell Street, Dublin, in 2012, three years before what became its  permanent closure. File photograph: Dara Mac Dónaill/The Irish Times

Clerys department store, O’Connell Street, Dublin, in 2012, three years before what became its permanent closure. File photograph: Dara Mac Dónaill/The Irish Times

 

A High Court challenge against powers used by inspectors investigating the collective redundancies of workers at Clerys department store has been given the go-ahead.

Investment company D2 Private Ltd and its director and owner Deirdre Foley sought permission to bring proceedings after inspectors appointed by the Workplace Relations Committee, along with members of An Garda Síochána, entered the firm’s offices at Harcourt Terrace Dublin last Thursday.

Mr Justice Anthony Hunt, granting D2 Private permission to challenge the inspectors’ rights to enter their premises and take certain documents and materials, said on Monday he was satisfied the company had an arguable case.

The judge said during a vacation sitting the permission did not mean that D2 Private would ultimately succeed in their challenge.

The court heard last Friday, when the application first came before the court, that the inspectors were appointed by the Workplace Relations Commission following the Dublin store’s closure in June 2015, shortly after its sale by its previous owners, the Gordon Brothers Group, to Natrium Ltd.

Eoin Mc Cullough SC, for D2 Private, said Natrium is a joint venture made up of D2 Private Ltd and Cheyne Capital Management in the UK. Approximately 460 people either directly employed by Clerys or by various concession holders in the store lost their jobs.

Counsel said that as part of their investigation, the two inspectors rely on certain provisions of the 1977 Protection of Employment Act and the 2015 Workplace Relations Act, including powers to enter premises and take documents.

Laptop demanded

After entering D2 Private’s offices last week, the inspectors demanded to be furnished with a laptop belonging to a company employee and certain books and records. The laptop was taken by the inspectors, the court heard.

The documents include correspondence the company had with parties including the liquidators and directors of the company that had operated Clerys - OCS Operations - before Natrium acquired the Store.

The court heard Ms Foley and D2 Private reject the inspectors’ assertions they have the power to enter onto their premises or to lawfully take the computer or materials sought.

Barrister Breffni Gordon, for the Minister for Jobs, Enterprise and Innovation, which has responsibility for the commission, said his client opposes the application.

He said the investigation was being conducted to see if a criminal prosecution should be brought arising out of the workers’ collective redundancy.

Mr McCullough said Ms Foley and D2 Private were seeking permission to bring the challenge as the case was essential to the statutory interpretation of the Acts in question.

Counsel said it is their case the inspectors can only enter premises and take documents and materials relevant to their investigation.

He said Ms Foley and D2 Private were never the employers of and had no connection with the Clerys workers.

The court heard the documents sought and the materials on the computer are outside the remit of the investigation and there was no valid basis for taking them.

Counsel added there were concerns about commercially sensitive information contained on the laptop taken.

It was their case the inspectors were not entitled to take it and they were seeking orders to have it returned.

Barrister Rossa Fanning, for Natrium Ltd, a notice party in the proceedings, said his client were supporting D2 Private’s application.

Judge Hunt had last Friday accepted an undertaking that the laptop taken by the inspectors would be kept by a solicitor for the department and not interfered with pending further order by the court.

Today, he refused a request from D2 Private for the laptop to be returned, but directed the department to make a forensic copy of the laptop hard drive, with an undertaking not to interfere with the laptop or the copy pending further order. The court heard that due to a lengthy waiting list, it could take up to a year for the copy to be made.

The judge directed the department to notify D2 Private when and by whom the copy will be made.

He also accepted an undertaking from D2 Private not to access the laptop in the meantime.

Judge Hunt, noting the importance of the action and the serious consequences for the parties involved, adjourned the matter for mention to Wednesday, when the new legal term begins.