A Supreme Court judge proposed dismissing the Competition and Consumer Protection Commission’s appeal over a search of Irish Cement Limited’s headquarters, finding that the seizure of a former managing director’s entire email account breached privacy rights. He proposed an injunction preventing the commission from reviewing any material taken in the search.
The judgment, dated 29 May 2017, was delivered by Justice John MacMenamin. He said he would affirm the High Court’s decision. The source gives MacMenamin’s proposed conclusion; it does not state the Supreme Court’s final order or the positions of the other judges on the appeal.
The CCPC searched Irish Cement’s premises at Platin, County Meath, on 14 May 2015, under a warrant issued by the District Court. The investigation concerned complaints that Irish Cement used exclusive purchasing arrangements, rebates or other inducements with distributors of bagged cement in Ireland, allegedly excluding competitors. These were allegations under investigation, not findings that the company had committed an offence.
Officials downloaded the entirety of Seamus Lynch’s email account and associated network files. Lynch had previously been Irish Cement’s managing director and, by the time of the search, held a role in CRH’s Heavy Side West division. The judgment said the material included correspondence involving CRH subsidiaries in Spain, the Netherlands and Belgium, which the CCPC did not allege were involved in the complaints. Irish Cement’s lawyers estimated that the download comprised 380,000 files, or 96 gigabytes; the CCPC did not dispute that estimate.
MacMenamin said the warrant did not identify the suspected offence, the people under investigation or meaningful limits on what could be searched. Lawyers were not given the sworn information underlying the warrant until after proceedings began. The CCPC later accepted there was a high probability that the seized material included irrelevant data, and proposed using keyword searches to limit what officials could review. The judge considered that proposal insufficient because there had been no focused search at the time and no independent or judicial process to assess irrelevant material.
He concluded that the seizure and retention were disproportionate and ultra vires under section 37 of the Competition and Consumer Protection Act 2014, and breached the respondents’ constitutional and Article 8 European Convention on Human Rights privacy rights. He proposed declaring the search unlawful and restraining the CCPC from reviewing or examining any material obtained through it. He also said the High Court’s order under the Data Protection Act should be set aside, agreeing with Justice Charleton that those provisions did not arise.