Is there anything new in this ?
SECTION 171.
Question proposed : " That Section 171 stand part of the Bill."
This is really an extension of the existing law making better provision for the payment of expenses of investigations.
And making parties who are found guilty——
To bear the brunt.
Which was not the case before ?
No, it was not.
Question put and agreed to.
NEW SECTION.
I move amendment No. 63 :—
Before section 172 to insert a new section as follows:—
" A director or directors of a company the subject of an investigation under any of the preceding sections shall have a right of appeal to the High Court against such inspection or investigation."
The purpose of the amendment is to give a director or directors of a company that has been the subject of an investigation the right of appeal to the High Court. The powers granted here are wide and it is normal in an investigation in a matter of this sort, I think, where an inquiry is conducted to give the right of appeal. We have had somewhat similar rights granted in other legislation. The inspection in this case might cover a wide field and I think that if a person is the subject of an investigation of this kind he should have the right of appeal to the High Court where an investigation is carried out under any of the preceding sections.
Does the Deputy mean that the right of appeal should apply to the Minister's decision to appoint an inspector or does he mean the right of appeal against the report of the inspector ?
Against the report, not against the Minister's right.
The report of the inspector is not a judgment. It is only evidence of their opinion of the affairs of the company and so I suggest the right of appeal does not arise.
Is Deputy Cosgrave right in the answer he has given ? " A director or directors of a company . . . shall have a right of appeal to the High Court against such inspection or investigation." According to the amendment the right of appeal is against the inspection or investigation being carried out, before it starts at all.
It may not be properly drafted but I think the person who is the subject of investigation and report should have the right of appeal but not against the Minister's right to conduct the investigation. I think it is agreed that in a matter of this sort where the Minister has such a case referred to him, that an investigation should be allowed, but there may be circumstances in which a report—although it does not necessarily follow—would libel some person in any respect and cast a slur on his character without giving him any effective means of taking action against it. I do not want to prejudge or presuppose what would happen by assuming in any particular case a report is made by the inspector but I am assuming it is published and it is laid on the Table and in other words, naturally, as would be the case, widely publicised and in that case I think the person should have some redress in the sense that although a matter of this kind has been carried out virtually on a court basis in that those involved are very likely to be represented by solicitor and counsel—
It does not seem to me that you can get that effect from the amendment.
I do not mind rephrasing it.
But if, after the Minister decides there is going to be an investigation and you want to give the directors a right to stop it by appeal to the High Court are you not going to get a worse form of investigation then with batteries of counsel on both sides all of whom would tell the court what is wrong with the whole business and you will have a public investigation spread over the newspapers and perhaps going on for three or four weeks whereas the investigation conducted privately may show there is no justification for any fears about the company ?
I think Deputy Cosgrave is visualising a different kind of case where a director is adversely commented on by the inspector and suggesting in that case, he should have the right to go to the court in an action by way of some sort of appeal but in fact to provide for him to ask the court for an order that paragraph 77, say, of the inspector's report be deleted.
What I have in mind is that the report must be presented first. It will naturally be publicised and where the person directly involved, perhaps one or a number of directors or people may be adversely commented upon, as the procedure is at present, so far as I can see they have no right of redress.
Is that the situation ? Would they not have a natural right to go to the court.
I think the only way of doing it would be to give such a person a right to go to court for a declaration that paragraph 77 of the inspector's report was made without justification and should be deleted or something like that.
Would that conflict with the proposal made previously about privilege?
No.
No.
It would not be an action against the inspector?
No, not unless, of course, he was guilty of some offence.
I do not want to go against the Minister's right to hold an inquiry.
You will have to get a new amendment.
I shall redraft it.
Something like that could be worked out. I do not know what it could achieve. For one thing the report of the inspector is under Section 172, admissible merely as evidence in any proceedings of the opinion of the inspectors in relation to any matter contained in the report. It might be a double edged sword so far as an aggrieved director is concerned because in going to court to have the paragraph expunged he might do more damage to himself.
Therefore that is the decision he himself would have to make.
Subject to finding out whether he would have that right under common law—I do not know—I am not averse to the suggestion. If it is not provided for otherwise I shall consider putting it in here.
I agree and I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 172 agreed to.