The High Court has quashed a District Court decision refusing the Competition Authority permission to retain documents seized from three motor businesses, but has yet to decide whether the application should return to the District Court for rehearing.
In a judgment delivered on 27 November 2007, Mr Justice O’Neill found that District Judge Hugh O’Donnell exceeded his jurisdiction by enquiring into the validity of search warrants and earlier retention orders. The judge said the District Court had to treat the warrants as valid; challenges to them belonged in an appeal or in judicial review proceedings before the High Court.
The Competition Authority had sought permission under section 45(6) of the Competition Act 2002 to retain material seized under warrants issued on 8 April 2005. The application was refused after hearings on 5 and 6 October 2005. The Authority then brought judicial review proceedings challenging the District Court’s handling of the application.
The businesses affected were Bursey Peppard Limited, Finglas Motors Limited and Lusk Motor Factors Limited. The Authority had notified them of the retention application. The High Court held that section 45(6) did not prescribe whether applications had to be made on notice or ex parte. Because the Authority chose to give notice, the District Judge was entitled to hear the notice parties.
The court also held that a sworn information could, in principle, support a retention application. The proposed information in this case, however, did not provide enough detail about the investigation’s progress or likely conclusion for the District Judge to exercise his discretion. The affected parties could cross-examine witnesses about that progress and give evidence about hardship caused by the continued deprivation of their property. Their questioning could not extend to the substance or fruits of the investigation.
The High Court found, on the balance of probabilities, that the District Judge had embarked on an enquiry into the validity of the April 2005 warrant and earlier warrants and orders. It concluded that this went beyond the limited task under section 45(6), which was to consider whether the investigation was progressing reasonably expeditiously and the effects of continued retention on the property owner.
The notice parties argued that a rehearing could be futile because the six-month retention period had expired and there was no legal basis to continue holding the material. The Authority had refused their requests for its return, arguing that return would make the judicial review proceedings moot. The High Court granted certiorari quashing the District Court decision but said it would hear further argument before deciding whether to remit the application for rehearing.