The Supreme Court has upheld the Minister for Enterprise, Trade and Employment’s power to appoint an authorised officer to examine Dunnes Stores company records arising from irregular payments identified by the McCracken Tribunal.
The dispute concerned Dunnes Stores Ireland Company and Dunnes Stores (Ilac Centre) Limited. Following the tribunal’s investigation into payments involving Charles Haughey and Michael Lowry, then Minister Mary Harney appointed an authorised officer under section 19 of the Companies Act 1990 to examine company books and documents.
The companies challenged that appointment. They argued, among other points, that the reasons given did not justify the investigation and that the demands for records were excessive.
The High Court ultimately quashed the appointment, finding that the stated reasons did not sustain the Minister’s use of the statutory power. The Minister and authorised officer Gerard Ryan appealed.
Chief Justice Keane agreed that several reasons advanced by the Minister could not independently justify the appointment. In particular, examining records to establish matters already determined by the McCracken Tribunal was unnecessary, while a statutory provision framed in the present tense could not support investigation of completed historical illegality on that basis alone.
However, the Supreme Court found a separate and sufficient ground for the investigation. The evidence established that company affairs had previously been conducted in a manner unfairly prejudicial to some members. The Minister was entitled to investigate how substantial payments had been made without the knowledge or approval of other directors and shareholders and whether existing company-law safeguards were adequate.
The court also held that the categories of records sought in January 1999 were not unduly extensive when measured against the scale of the misuse already identified.
The appeal was therefore allowed. That did not finally dispose of the litigation: the companies had also challenged the constitutionality of provisions of the 1990 Act, and that issue had not been decided. The Supreme Court remitted the case to the High Court for determination of that constitutional question.