The Supreme Court upheld a High Court order that had barred the Competition and Consumer Protection Commission (CCPC) from scrutinising emails copied during a search connected to an investigation into suspected competition offences in the bagged cement market. But it set out a process that could allow the investigation to proceed while addressing privacy concerns.
The appeal concerned a May 2015 search of Irish Cement Limited premises. Under warrant, the Commission copied the entire email account of Séamus Lynch, a CRH group executive and a person of interest in the investigation. More than 100,000 emails were copied. The Commission accepted that many were unlikely to relate to the suspected activity.
The investigation began after a complaint in May 2014 about alleged exclusive purchasing arrangements with distributors. The allegations included suspected price-fixing and abuse of a dominant position. They remain unproven; the appeal concerned the Commission’s search and examination powers, not whether any offence occurred.
The companies and Lynch argued that the Commission could not take or copy material for later review without their participation, and that irrelevant material should be returned or destroyed. They also raised privacy and data protection concerns. The Commission said forensic examination could require work off site, including recovery of deleted material and review of email metadata.
In a judgment delivered by Mr Justice Peter Charleton, the Supreme Court held that section 37 of the Competition and Consumer Protection Act 2014 allowed material to be copied and examined away from the searched premises. The statutory test covered information that might be required for the investigation, rather than only material already shown to be directly relevant. The Court also rejected the argument that Lynch’s roles within related companies made the copied emails irrelevant.
The Court nevertheless said the Commission had not justified taking an entire email account without dates or other limits. It upheld the High Court order in the context in which the case had been presented, while confirming that the Commission was entitled to continue its investigation. The appeal judgment did not require a representative to attend the review or give the parties control over search terms; it described attendance at an initial review as potentially appropriate, not a legal right.
The Court suggested that the companies and Lynch specify private material and explain its sensitivity, and that the Commission invite submissions on search terms. It said a representative for Lynch might attend the initial targeted review. After identifying material relevant to the investigation, the Commission could arrange to destroy material that was private and irrelevant. These were suggested steps to help the parties move forward, not a final court-ordered review protocol.