Arrow left dark
Newsletter icon SUBSCRIBE

High Court: Independent News and Media has application for judicial review of OCDE decision dismissed

Clock icon Reading time: 4 minutes

Independent News and Media (INM) have had their application for judicial review of a decision taken by the Office of the Director of Corporate Enforcement (OCDE) dismissed by the High Court.

Image

About this case:

Stating that INM’s argument that it had a right to be consulted prior to the institution of legal proceedings by a public body was “novel and without precedent”, Mr Justice Seamus Noonan said that such a proposition could not be sustained as a matter of law.

Right to be Consulted

Mr Justice Noonan said that INM’s fundamental position that it had “a right to be consulted prior to the institution of legal proceedings by a public body” was “novel and without precedent”. Mr Justice Noonan added that such a proposition could not be sustained as a matter of law – as per Meath County Council v Murray IESC 25, a decision by a public body to institute legal proceedings could not be regarded as a decision which attracts the requirement to afford fair procedures as identified in East Donegal Co-operative Livestock Mart Limited v the Attorney General IR 317.

Not exceptional or unique

INM submitted that its position was distinguishable from the case law for three reasons, and Mr Justice Noonan rejected each of them in turn:

  1. INM complained that the decision to go to court was the culmination of a process involving the compulsory extraction of information from INM pursuant to statutory power, which Mr Justice Noonan said was not a valid point of distinction. Mr Justice Noonan added that there were many instances of authorities litigating issues arising from compulsory legal processes with no prior right to consult.

    1. INM complained that it could not be vindicated by the determination of the court, as the court makes no findings of fact at the inspectorate application before it. Stating that INM would indeed be able to vindicate itself through having the opportunity to answer all of ODCE’s concerns, Mr Justice Noonan said that the court may well be persuaded that it should decline ODCE’s application. Identified the crux of INM’s complaint to concern “the appointment of inspectors as distinct from the application to do so”, Mr Justice Noonan said that “if inspectors are appointed, that can only occur if the court is satisfied that ODCE has made out his case”.

      1. Finally, it was suggested that ODCE reached conclusions and made findings in the affidavit grounding the inspectorate application – which Mr Justice Noonan said was “somewhat surprising”. Describing the argument as being one “couched in terms that would suggest the triggering of a right to fair procedures such as would arise where a statutory body prepares a report containing such findings and conclusions” Mr Justice Noonan said this characterisation of ODCE’s affidavit was incorrect. Mr Justice Noonan explained that “in our adversarial system, virtually every claim by the State or indeed any other party involves an assertion of wrongdoing on the part of the opposing party. Every claim is predicated on assertions of fact or law”, accordingly, it would be difficult to see how ODCE “could ever make an application for the appointment of inspectors without expressing some views on the state of affairs” – Mr Justice Noonan said that these were “plainly not determinative of anything” and it would “ultimately be a matter for the court to accept them or not as the case may be”.

        2. Given all of the above, Mr Justice Noonan rejected the submission that INM’s case was in some sense exceptional or unique.

        No right to fair procedures

        Mr Justice Noonan said that if “no legally cognisable damage is suffered as a result of the impugned decision, there can be no right to fair procedures”. are made.

        Mr Justice Noonan said that if INM was entitled to fair procedures and a right to consult – it would “follow as night follows day that the full spectrum of the In Re Haughey rights would be routinely sought in every case” – resulting in an unworkable system where ODCE would become “embroiled in lengthy, complex and costly procedures akin to quasi criminal trials held entirely in private”.

        This would not only debilitate the system, but it would also be inconsistent with the public interest – and indeed with the choice made by the Oireachtas not to provide for the right of consultation asserted by INM.

        Ultimately, Mr Justice Noonan concluded that any damage allegedly suffered by INM was “but an incident of incorporation, the consequences of which, both positive and negative, must be accepted…”.

        For all the above, Mr Justice Noonan dismissed the application for judicial review.

        • by Seosamh Gráinséir for Irish Legal News

          • Copyright © Irish Legal News Ltd 2018

          Share icon
          Share this article: