Updated: 26/10/16 : 07:42:43
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High Court dismisses Sligo woman's challenge over seized material

The High Court has dismissed a challenge by Sligo woman Deirdre Foley and her company D2 Private to the seizure of material by investigators probing the take over of Clerys department store.

460 workers lost their jobs in the store in June 2015 when Clery's was sold to the joint venture, Natrium, which is made up of D2 and the UK-based Cheyne Capital Management. 130 were directly employed by Clery's. 330 were indirectly employed by concessions.  

RTÉ reported that the Workplace Relations Commission began an investigation shortly after the closure

Riverstown native Ms Foley and D2 claimed the inspectors were not entitled to enter the office last May and seize items, including a laptop computer and some documents.

They claimed they were never the employers of the Clerys' workers.

A company called OCS Operations Ltd was at all times the employer and the decision to make the workers redundant was made independently of D2 and Ms Foley, they argued.

The action was against the WRC and the Inspectors. They opposed the application, and argued the challenge should be dismissed.

They argued the decision to enter D2's offices was a legitimate one made in the public interest.

In his judgment dismissing the action Mr Justice Michael Twomey said the court "did not see any basis for interfering" with the investigation.  

He said the case was not about matters including if D2 or Ms Foley were liable for any person who acted as officers or managers of OCS Operations the company that had owned Clery's, in relation to any alleged offences surrounding the redundancies.

Similarly it was not about whether evidence obtained by the inspectors following the seizure is admissible in any criminal trial. The court did not have to determine the merits of the "very forceful arguments" made by Ms Foley and D2, he added.

The case was "much more about a preliminary issue" if a court can interfere in the investigative process by an agency of the state before the institution of criminal proceedings, he said.
The threshold for a court to interfere in any investigation being conducted by agents of the State is "exceptionally high." In this particular case the judge said he was satisfied "that high standard" "had not been meet", he said.

Mr Justice Twomey said it was "premature" for the applicants to seek to interfere with the investigation whether they have any role in the alleged offences surrounding the Clery's redundancies.

The court's decision did not mean Ms Foley's and D2 arguments were without merit, however judicial review proceedings were not the appropriate forum where those arguments should be made.

The appropriate place was in a criminal trial if one takes place following the investigation, he said, adding that there are good principles for not interfering with such investigations.

He said if somebody suspected of being involved in a criminal offence could interfere or prevent an investigation that would represent "a very significant restriction to the criminal powers of the state."

In such a scenario the courts would be "filled with persons, or at least persons with the financial means, seeking to prevent investigations into their alleged criminal conduct."

The judge added there was "no certainly" materials on a laptop taken from D2's offices by the inspectors were privileged. D2 and Ms Foley had claimed material on the laptop was privileged and was inadmissible.

He said he was not prepared to make an order preventing the inspectors from making use of or to return the material to the applicants and added that he was not prepared to award damages to D2 and Ms Foley.

 The matter was adjourned to 8 November.