Updated 4.25pm
THE OFFICE OF the Director of Corporate Enforcement (ODCE) has dismissed an attempt by Independent News and Media to block an application to appoint High Court inspectors to it as “absurd” and “contrived”.
This morning, on the second day of a judicial review hearing instigated at the behest of INM, the ODCE delivered its rebuttal to that attempt, which resulted from leave being given by the High Court for an application to be made to appoint inspectors to the media group on 23 March.
Judicial review is a process whereby the courts can rule on the appropriateness of decisions made by administrative, statutory bodies, including those of the judiciary.
Yesterday, counsel for INM Paul Gallagher SC had argued that, in not notifying the company of its intention to gain leave to appoint High Court inspectors, the ODCE’s action had been unfair and lacking in natural justice, and stated that the company should have been given an opportunity to respond before the matter had ever made it before the courts.
With the review now concluded after two days, Justice Seamus Noonan has reserved his judgement, with the verdict to be delivered at a later date.
Should INM emerge victorious regarding this review, the appointment of inspectors will be blocked, possibly indefinitely.
Justifiable reasons
Today, counsel for the ODCE Brian Murray SC argued that there are no justifiable reasons to have INM’s case treated differently to any other company that attracts the interest of the Director of Corporate Enforcement.
“INM is unable to explain why its case is different from the norm,” he said.
He argued that counsel for INM was attempting to state that the 200-page affidavit submitted by ODCE director Ian Drennan in tandem with its announcement that it intended to apply for High Court inspectors was a statement of fact, akin to a state “producing reports or imposing sanctions”.
Such an argument is “unwieldy” and “contrived”, Murray said, adding that there is a big difference between the imposition of sanctions and a state body “exercising its right to come to court”.
Applying for the appointment of High Court inspectors “is not the same as the finding of an inquiry”, counsel said. “Context is everything.”
To describe a position adopted in an affidavit as a report or as findings and conclusions demonstrates the absurdity of the argument being made.
“The application to appoint inspectors is not the end of the process. You have to tell them what you’re doing and give your reasons,” he said.
He argued that the reduction in INM’s share price by 14% in the wake of 23 March was a natural consequence of a statutory process, and does not give the company any special entitlements or leave to object to the ODCE’s application.
‘Where does that end?’
He said that it appears to be INM’s case that “sworn evidence should have been shown” to it in advance.
“But where does that end?” he said.
Murray stated that there are multiple steps involved should the ODCE eventually succeed in its application.
He argued that the “correct legal analysis” of the situation at hand is that the Oireachtas has invested powers in the ODCE to allow it to apply for inspectors under the Companies Act 2014, and that the Oireachtas has not said that prior notice is required before bringing such an application.
“There is no distinction between this application and a legal process brought by any other public body, regardless of the expense incurred by a company, or the reputational damage incurred.”
He dismissed the suggestion that an application for inspectors merits special entitlement on the part of the company being inspected due to the rarity of such an application being made by the ODCE.
“But the ODCE has a whole other range of statutory applications that it brings to court,” Murray said.
Upon conclusion of the two-day hearing, Justice Seamus Noonan declared he would be reserving his judgement in order to consider the various strands of case law that had been presented to him.
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