CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 17101/90                       by Mohamed Al FAYED, Ali FAYED                       and Salah FAYED                       and the House of Fraser Holdings plc                       against the United Kingdom           The European Commission of Human Rights sitting in private on 15 May 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 30 August 1990 by Mohamed Al FAYED, Ali FAYED and Salah FAYED and the House of Fraser Holdings plc against the United Kingdom and registered on 30 August 1990 under file No. 17101/90;         Having regard to:   -      reports provided for in Rule 47 of the Rules of Procedure of the Commission;   -      the Government's written observations of 10 June 1991 to which the applicants replied on 15 November 1991;   -      the parties' oral submissions at the hearing on 15 May 1992;         Having deliberated;         Decides as follows:   THE FACTS         The first three applicants are Egyptian citizens, born in 1933, 1943 and 1939 respectively.   They are brothers and businessmen.   The fourth applicant is a limited public company which is owned by the brothers.   The applicants are represented before the Commission by Messrs. Herbert Smith, Solicitors, London.         The facts of the present case, as submitted by the parties, may be summarised as follows:   A.     The particular circumstances of the case         The application arises out of an investigation into the affairs of the fourth applicant by Inspectors appointed by the Secretary of State for Trade and Industry, pursuant to section 432 (2) of the Companies Act 1985, and the publication of the Inspectors' report in its entirety by the respondent Government.         In March 1985, the first three applicants acquired ownership of House of Fraser plc (HOF).   HOF was then and is now one of the largest groups of department stores in Europe and includes one particularly well-known London store, Harrods.   The brothers acquired ownership of HOF through the fourth applicant, the House of Fraser Holdings plc (HOFH), which at all material times was owned by the brothers.   It had previously been known as the Al Fayed Investment Trust (UK) Limited and assumed its present name in December 1985.         Prior to the HOF takeover, in or about early November 1984, on professional advice, the brothers appointed Broad Street Associates to act as their public relations advisers and, with their assistance, the brothers and their advisers led the press to receive and present a positive picture of their origins, wealth, business interests and resources.   Upon the basis of this picture, which they had a part in painting, they enjoyed, for a time, an esteem or reputation which was highly valuable to them.   Between 2 and 10 November 1984 the first applicant gave separate interviews to The Observer, The Sunday Telegraph and The Daily Mail.   The applicants' public relations consultants played a part in making the arrangements.   A further interview, involving the brothers, arranged by the consultants, took place on 10 March 1985.   In these interviews the brothers described a wealthy, distinguished and established family background.   They gave a similar picture to Mr. MacArthur of their merchant bankers Kleinwort Benson.   Mr. MacArthur accepted it and, acting on their behalf, conveyed that picture by a press release in November 1984 and in a television interview in early March 1985.   There were other press interviews about the family background for which the applicants were responsible.   They thus took active steps to promote their own reputations in the public domain.   The acceptance of the brothers by the City of London and by Government was later considered to be crucial to an understanding of the events surrounding their takeover of HOF.         The takeover was vigorously but unsuccessfully opposed by Lonrho plc (Lonrho) and, in particular, its Chief Executive, Mr. Rowland, a former business associate, turned rival, of the applicants.   In 1984 Lonrho had sold its near 30 % share in HOF to the applicants, but when their directors were obliged to resign from HOF's Board and the applicants bid to take over HOF completely, relations between Lonrho and the applicants deteriorated.   Lonrho proceeded to launch an acrimonious campaign against the applicants.   In opposing the applicants' bid for HOF, Lonrho had made submissions to Ministers     concerning unfair competition and the undesirability of HOF falling into foreign hands.   It was alleged that the applicants were fraudulently claiming that the funds for the acquisition were theirs personally.   Lonrho alleged that the brothers were lying about their money and themselves and that they should not be permitted to acquire HOF without a thorough inquiry.   However, the applicants' bid was cleared and accepted, but Lonrho single-mindedly campaigned on through the media and other publications, and in particular through its newspaper, The Observer.   The applicants instituted three libel actions against The Observer in 1985 and 1986 for articles written about them. In March 1987 Lonrho commenced legal proceedings against the applicants and their bankers alleging wrongful interference with business, conspiracy and negligence in connection with HOFH's acquisition of HOF. These proceedings are to date apparently still pending.   Lonrho was refused leave to apply for judicial review of the Secretary of State's refusal to refer the applicants' acquisition of HOF to the Monopolies and Mergers Commission (MMC).         After two years of powerful and unrelenting pressure by Lonrho upon the United Kingdom Government, on 9 April 1987, the Secretary of State for Trade and Industry appointed two Inspectors to investigate the affairs of HOFH and, in particular, the circumstances surrounding the acquisition of shares in HOF in 1984 and 1985.   The appointment of the Inspectors was made by the Secretary of State under section 432 (2) of the Companies Act 1985 (the 1985 Act).         The Inspectors stated that their investigation was an unusual one and that in order to establish what had occurred during the takeover they had been obliged to make findings on contested issues of fact.         The principal questions which they addressed when investigating the affairs of HOFH were as follows:         "(i)        Were the Fayeds who they said they were, and if not                  who were they?         (ii)        Did they acquire HOF with their own unencumbered                  funds?         (iii)       Did they deliberately mislead, whether directly                  or indirectly, those who represented them to the                  authorities and the public?         (iv)        If so, did they seek to frustrate those who tried                  to establish the true facts, and if so how?         (v)         What steps did the Board of HOF and its advisers                  and the Fayeds' financial and legal advisers take                  before they gave the comfort that they appeared                  to give to those who relied on their words or                  actions?         (vi)        Were the authorities - the officials of the OFT                  (Office of Fair Trading) and the DTI (Department                  of Trade and Industry) and, eventually, Ministers -                  or the public misled about the Fayeds?   If so,                  how and why?"         (The Inspectors' report, para. 1.11).             The Inspectors also stated that, throughout their investigation, they were not concerned solely with simple questions relating to the direct control of the purchase money which was used to buy HOF.   They were concerned about the statements which the applicants made, or which they allowed others to make on their behalf, which had the effect of influencing people to act favourably towards them.         During the course of the investigation, the Inspectors identified matters upon which they wished to receive evidence.   If any uncertainty or issue arose in relation to the provision of such evidence, these were discussed in the course of meetings or through correspondence between the Inspectors' staff and the applicants' solicitors. Thereafter, information was provided to the Inspectors by way of memoranda, together with copy documentation.   In addition, the Inspectors received oral evidence by interviewing witnesses.   They interviewed Mohamed and Ali Fayed on 14 October 1987 and again on 8 and 9 March 1988.   All proceedings were conducted in private.   There was no opportunity for the applicants to confront or to cross-examine witnesses, it being well-established as a matter of English law that the Inspectors were not obliged to afford such an opportunity to anyone.         It was agreed between the Inspectors and the applicants that, having assimilated the factual information supplied, the Inspectors would notify the applicants of the provisional conclusions they had reached and the material upon which they had relied in reaching such conclusions.   The Inspectors would then consider such submissions as the applicants might make in respect of these conclusions.         Respect for personal privacy was a matter of particular concern to the brothers.   It was not in dispute that they had occupied a position as trusted and confidential advisers to Heads of State.   This fact made respect for the privacy of their affairs especially important.   They claimed that loss of confidence in their ability to maintain privacy would put in jeopardy their relationships, as businessmen and confidential advisers, with Heads of State and other important and influential individuals.         The Inspectors' approach to matters of privacy and confidentiality is summed up at paragraphs 26.44 - 26.45 of their subsequent report as follows:         "We were aware of the Fayeds' concerns about privacy.       However, if private people incorporate a company, in       which they become directors, and which makes public       representations about their affairs, Inspectors who       are appointed to investigate the truth of those       representations must balance their concern to preserve       the directors' privacy as far as practicable (in       Chapter 12 for instance we have deliberately refrained       from making detailed findings in respect of many of       the Fayeds' private companies whose accounts we have       seen) against their duty to do the job which they       were appointed to perform.         If the Fayeds had chosen to say nothing this might       have created evidential difficulties for us.   But       because they wished us to make findings in their       favour they brought witnesses to see us ...       and gave us evidence about their private affairs       which it was then our duty to test."         At the start of the investigation the brothers expressly accepted that the Inspectors were entitled to enquire into the accuracy of statements which had been made by them or on their behalf.   These were the statements at the heart of the enquiry.   Only at the very end of the enquiry did they alter that stance and challenge the Inspectors' entitlement to enquire into certain aspects of their private life.   The Inspectors rejected the challenge and gave their reasons for so doing. The Inspectors were entitled to seek confidential information from third parties, but before doing so they gave the brothers an opportunity to satisfy them as to the accuracy of the statements "in whatever manner was least obtrusive to their privacy" (report paras. 16.2.5 and 16.6.2).   The law did not permit them to compel the brothers to produce personal bank statements (which would have gone far to confirm or refute the accuracy of the statements) nor, save to a very limited extent, did the brothers consent to such production.   The Inspectors considered that the brothers were in breach of their duty to give all the assistance which they were reasonably required to give. The Government stated that the Inspectors were entitled to certify to a court that the brothers were refusing to answer questions, produce documents or to give such assistance as they required (section 436 of the 1985 Act).   The court could then have taken steps to sanction the brothers if, after hearing evidence, it was satisfied that they were in breach of their duty.   The Inspectors, however, were of the opinion that they could complete their task without the need to resort to such a serious measure and chose to pursue the matter without making such a certificate.         In October 1987 and thereafter Lonrho publicly criticised the conduct of the investigation by the Inspectors and sought an additional two month period in which to assemble and submit evidence to them. Through its lawyers Lonrho submitted that the rules of natural justice required the Inspectors to allow Lonrho access to the information the Inspectors had received from the applicants because Lonrho's commercial reputation would suffer if the Inspectors dismissed the complaints which it had made so publicly.   The Inspectors dismissed Lonrho's application for access to the applicants' evidence, but permitted Lonrho to have a longer period in which to adduce evidence to them, relating primarily to the personal background of the brothers and their family.   The applicants' solicitors protested to the Inspectors vigorously about this decision.   The Inspectors accepted that Lonrho and its directors had pursued their ends in a remarkably single-minded manner.         The Inspectors' provisional conclusions were made available to the applicants on 12 April 1988 and, after much correspondence, it was agreed that the applicants could make final submissions to the Inspectors by 15 July 1988.   On 23 July 1988, the Inspectors delivered their Report to the Secretary of State.   The Inspectors concluded that the applicants had dishonestly misrepresented their origins, their wealth, their business interests and their resources to the Secretary of State, the OFT, the Press, the HOF Board and HOF shareholders and their own advisers; that during the course of their investigations, the       Inspectors had received evidence from the applicants, under solemn affirmation and in written memoranda, which was false and which the applicants knew to be false; in addition, that the applicants had produced a set of documents they knew to be false; that this evidence related mainly, but not exclusively, to their background, their past business activities and the way in which they came to be in control of enormous funds in the Autumn of 1984 and the Spring of 1985.   The Inspectors were satisfied that the main thrust of Lonrho's attack on the applicants was well founded on a sound basis of substantiated fact (report para. 1.20).   However, the Inspectors did not reject the entirety of the applicants' evidence and praised part of their work. Thus the report included, for example, findings that "... the departure of the Lonrho directors and their replacement by the Fayeds brought harmony to a board where previously discord had existed" (report para. 6.6.9); and that "the Fayeds' considerable ability to identify assets with a potential for capital appreciation has undoubtedly been an important element in their business success" (report para. 12.6.10). In relation to the valuation of the brothers' banking interests the Inspectors rejected the evidence of an Observer journalist and accepted the figure which they advanced.   In the final chapter of the report the Inspectors make complimentary findings of fact and express favourable opinions about HOFH.   In the concluding paragraph the Inspectors made it clear that their concerns "have been principally centred on the specific matters we were appointed to investigate, and not on anything which has occurred since March 1985".   They regarded the management of HOF since its acquisition as, subject to certain reservations, "law-abiding, proper and regular".         The Secretary of State passed the report to the Director of Public Prosecutions (the DPP) and the Director of the Serious Fraud Office (the SFO).   On 29 September 1988, the Department of Trade and Industry (DTI) issued a press release stating that publication of the report would be delayed until the SFO had completed its investigations. After consideration of the report and the accompanying evidence, the Director of the SFO and the DPP jointly referred the matter to the Metropolitan Police on 24 November 1988 and asked for necessary inquiries to be carried out.   In the summer of 1988, the Secretary of State also sent copies of the report to the Bank of England, the Takeover Panel, the Inland Revenue, the OFT and the MMC.         In early November 1988, Lonrho sought judicial review of the Director General of Fair Trading's failure to advise the Secretary of State with regard to a possible referral to the MMC.   This application was withdrawn when the Director General subsequently tendered his advice to the Secretary of State.   On 9 November 1988, the Secretary of State announced that, consistent with the advice of the Director General of Fair Trading, he had decided against the referral of HOFH's acquisition of HOF to the MMC, even though the report did disclose new material facts.   Also in November 1988, Lonrho made an unsuccessful application for judicial review of the Secretary of State's decisions (i) not to publish the report immediately and (ii) not to refer the acquisition to the MMC in the light of the report.   On 30 March 1989, the day of Lonrho's Annual General Meeting, The Observer newspaper published a 16 page special midweek edition devoted solely to extracts from and comments on a leaked copy of the report.   On the same day, Lonrho posted between 2,000 and 3,000 copies of the special edition to persons named on a mailing list to whom Lonrho had been regularly sending propaganda literature hostile to the applicants.   The High Court immediately granted injunctions, on the applications of the       Secretary of State and HOFH, restraining any further disclosure of the report or its contents.   On 10 April 1989, before Lonrho's appeal in its unsuccessful judicial review application was before the House of Lords, Lord Keith of Kinkel raised the question whether the publication of the special edition and its posting to, inter alia, four members of the House of Lords who were due to hear Lonrho's appeal, was a contempt of court by Lonrho, Mr. Rowland or the editor of The Observer. Subsequently, the House of Lords held (<1989> 3 WLR 535) that the publication of the special edition did not in the circumstances create any risk that the course of justice in the appellate proceedings challenging the lawfulness of the Secretary of State's decision to defer the publication of the report would be impeded or prejudiced, and they dismissed the contempt proceedings.         During the course of an interview broadcast on BBC Radio 4's news programme, Today, on 4 April 1989, the Secretary of State stated, prior to its publication, that the Inspectors' report "clearly disclosed wrongdoing".   This gave rise to substantial press reports.         On 1 March 1990, the Director of the SFO and the DPP announced that their inquiries into the matter were complete and that they would not be taking further action.   They had carefully considered the report and the accompanying evidence.   In a joint statement issued on that date they said:         "The directors are now satisfied that all lines of enquiry       have been pursued and that the evidence available is       insufficient to afford a realistic prospect of conviction       for any criminal offence relating to any matter of       substance raised in the report."         The Attorney General expressed himself satisfied that the conclusion reached by the two directors was the correct one on the basis of the admissible and available evidence.   On 12 March 1990, he stated to the House of Commons, in reply to a question (Hansard, House of Commons, 12 March 1990, column 14):         "Whereas it was open to the inspectors to take account       of hearsay evidence if they thought that it was reliable       - and of course it was open to them to reach the       conclusion that they did - it would not have been open       to a jury in a criminal case to convict upon evidence       of the same character.   The inspectors are entitled to take       account of evidence covering a wider scope than that       available in criminal proceedings in an English court ...       ... Inquiries were pursued in every part of the world       indicated by the inspectors' report, but the <Director       of the SFO and the DPP> had to conclude, as they said       in their joint statement issued on 1 March, that there       was insufficient evidence available for use in an English       court in English criminal proceedings on any matter of       substance raised in the inspectors' report to warrant       the bringing of criminal proceedings."                         Also on 1 March 1990, the Secretary of State announced his intention to publish the report on 7 March 1990.   It is general policy to publish reports on public companies.   (The fourth applicant, HOFH, is a public company.)   In this particular case the Government considered that there were specific grounds of general public interest justifying publication:         There had been a complex and lengthy investigation, and the       public were entitled to learn the result of that investigation       unless there were compelling reasons why they should not.   There       were important lessons to be learnt by those involved in       takeovers from studying the report.   These were categorised under       six headings as:   (1) the demarcation of responsibility between       the merchant bank and the solicitor,   (2) knowledge of one's       client,   (3) appropriate procedures for advisers in relation to       taking on clients, taking up references, accepting and verifying       material from other advisers, and accepting instructions from       clients,   (4) relationships with the media,   (5) relationships       with the regulatory authorities, and (6) loopholes in the City       Code on Takeovers and Mergers.   The report contained a       recommendation that certain features of part XIV of the 1985       Act (which deals with the investigation of companies and their       affairs) deserved to be reconsidered in the light of difficulties       encountered by the inspectors (report para. 1.25).   (Changes were       later incorporated in the Companies Act 1989.)   It was       appropriate to acknowledge that the Secretary of State, the OFT,       the DTI, certain journalists and sections of the press, the Board       of HOF, the regulatory authorities, and the applicants'       professional advisers had been misled by the applicants.   Lonrho       considered that its interests and reputation had been seriously       and adversely affected by the preparedness of the Secretary of       State to allow the HOFH bid to go forward in March 1985 without       a reference to the MMC.   Lonrho would have had a legitimate       grievance if the explanation for this was suppressed without       compelling reasons.   There was a need to dispel continuing       speculation as to the events which had given rise to the       investigation.   Rumours and speculation were rife.   Publication       of the report would provide employees and creditors with       information concerning the way in which HOF and Harrods had been       run and might be expected to be run in future.   (The Inspectors       were largely prepared to accept the sincerity of the brothers'       assurances for the future.)   The brothers had been prepared       before the Inspectors to attempt to discredit Lonrho,       Mr. Rowland, The Observer, its editor and others.   It was deemed       to be in the public interest to publicise both the fact that       these attempts had been made and the conclusion of the Inspectors       that they were ill-founded.         On 2 March 1990, the applicants were provided with pre-publication copies of the report in confidence, in order to enable them to consider their position.   Throughout the period from 26 July 1988 to 7 March 1990 the possibility of applying for judicial review to prevent publication was kept under review by the applicants and their advisers, but the unanimous view at all stages was that such proceedings were almost inevitably bound to fail and, accordingly, they were not commenced.                   On 7 March 1990, the Secretary of State for Trade and Industry stated to the House of Commons (Hansard, House of Commons, 7 March 1990, column 873):         "I should explain to the House that in this matter I have       three main responsibilities as Secretary of State: first,       to decide whether to publish the report.   This I have now done       as soon as possible after I was informed by the prosecution       authorities that they had withdrawn their objection to       publication.   Second, I had to consider whether to apply to       the court to disqualify any director under section 8 of the       Company Directors Disqualification Act 1986.   I have concluded       that it would not be in the public interest to do so.       Anyone who reads the report can decide for themselves       what they think of the conduct of those involved.       Third, I also have responsibility for decisions on       whether to refer mergers to the Monopolies and Mergers       Commission.   That responsibility was fully discharged       by my predecessor.   He had six months from July 1988 in       which to consider the findings of the inspectors' report       and to decide whether to refer the matter.   He concluded       in November 1988 that a reference to the MMC would not       be appropriate ...       No other matters require action from me.   I have passed       the report to all those authorities concerned with       enforcement and regulation so that they may consider       whether to take action under their various powers."         The Secretary of State considered that the publication of the report and the ensuing publicity would enable people who might have dealings with the applicants in their capacity as directors to judge whether their interests were likely to be at risk from the type of conduct described in the report.   The Secretary of State also publicly expressed his own view that the Inspectors' findings were correct.   He stated (Select Committee Report, Annex 6, page 183, paras. 938, 939, 940A):         "... the allegations in the report have not been substantiated       in a court of law.   We can all take our view about them and       I think that the balance of probability is extremely strongly       that they are accurate, but there is no proof of this.       ...       I am not required to say that every fact and opinion in the       report is true.   These were outside inspectors who were       appointed to look into these matters, and they published       their report.   I have no means of checking it word for       word.   I myself and I think most people are inclined to       believe that the events revealed are correct, but we have       no proof - that is all I am saying.       ...       <Question:>   It appears that <the applicants> even told       a succession of lies to the inspectors themselves, who       were then investigating the lies they had already told.       Is that right?       <Secretary of State:>   It so appears."         On 28 March 1990, in the course of a debate in the House of Lords, the Minister of State for Trade and Industry stated (Hansard, House of Lords, 28 March 1990, columns 946-7):           "Although the inspectors concluded that the Fayeds lied       to the competition authorities at the time of the merger       - I have no reason to believe that they were wrong, but       it is for individuals to make up their own minds once       they have read the report - the inspectors did not       criticise the Fayeds for the way they were running the       House of Fraser which they already owned and which       cannot be taken away from them.   In these circumstances,       <the Secretary of State> considered that publication       of the report, which would allow people to judge for       themselves whether they wished to do business with       the Fayeds, would be a severe blow to their reputation,       as indeed I think it has proved."         The report and its findings were widely reported on television, radio and in the national press.   The first three applicants claimed that it very seriously damaged their personal and commercial reputations as the Minister had predicted.   They also felt compelled to abandon their libel actions against The Observer newspaper and paid the latter's £500,000 legal costs.   One month after the publication of the report the Bank of England served notice of restrictions on Harrods Bank Ltd in relation to the brothers' positions within that company. A Parliamentary Select Committee considered that the Secretary of State had not taken sufficient action against the applicants.   Lonrho persisted with its attacks.   In May 1990 it applied for judicial review of the Secretary of State's refusal to apply to the High Court for an order disqualifying the first three applicants as directors.   These proceedings are apparently still pending.   B.     The relevant domestic law and practice         The scope of a section 432 (2) investigation         The investigation of HOFH was conducted under section 432 (2) of the Companies Act 1985 in relation to the circumstances surrounding the acquisition of shares in HOF in 1984 and 1985.   Section 432 (2) empowers the Secretary of State to appoint Inspectors to investigate the affairs of a company and to report on them in such manner as he directs if it appears to him that there are circumstances suggesting wrongdoing, within the categories of wrongdoing defined in sub-sections 432 (2) (a) to (d).   Section 432 (2) defines those categories of wrongdoing as follows:         "(a) that the company's affairs are being or have been            conducted with intent to defraud its creditors or            the creditors of any other person, or otherwise            for a fraudulent or unlawful purpose, or in a            manner which is unfairly prejudicial to some part            of its members, or         (b)   that any actual or proposed act or omission of the            company (including an act or omission on its            behalf) is or would be so prejudicial, or that the            company was formed for any fraudulent or unlawful            purpose, or                     (c)   that persons concerned with the company's formation            or the management of its affairs have in connection            therewith been guilty of fraud, misfeasance or other            misconduct towards it or towards its members, or         (d)   that the company's members have not been given all            the information with respect to its affairs which            they might reasonably expect."         The Secretary of State does not generally disclose to the company concerned the reasons for the appointment of Inspectors to investigate its affairs.   The Secretary of State is under no statutory obligation to do so (Norwest Holst Limited v. Secretary of State <1978> 3 WLR 73 (CA)).   In this case, when requested by the House of Lords to do so in the course of Lonrho's judicial review applications, the Government's counsel stated that the Secretary of State had acted under section 432 (2) (a) in appointing the Inspectors.         The basis for a section 432 (2) investigation         Before appointing Inspectors, it must appear to the Secretary of State that there are circumstances suggesting one or more of the types of wrongdoing described in section 432 (2) (a) to (d).   The Secretary of State is not required to limit the powers of investigation of the Inspectors to the matters set forth in section 432 (2), and Inspectors are not obliged, before they report, to consider whether every matter on which they report can properly be described as falling within section 432 (2), and to exclude it if it cannot (the Inspectors' report in this case, para. 26.18).         The Inspectors' powers to obtain information         Section 434 confers wide powers upon the Inspectors to obtain information, if necessary by compulsion, from officers and agents of the company whose affairs are being investigated.   An answer given by a person to a question put to him in exercise of powers conferred by section 434 may be used in evidence against him (section 434 (5)).   By virtue of section 436, obstruction of the Inspectors is treated as a contempt of court, and is therefore punishable by imprisonment or fine.         The Inspectors' duty to act fairly         The Inspectors have a duty to act fairly and to give anyone whom they propose to condemn or criticise in their report a fair opportunity to answer what is alleged against them (In re Pergamon Press Ltd <1971> 1 Ch. 388 (CA)).   However, the Inspectors are not a court of law; they are masters of their own procedure and are under no duty to act judicially (ibid., pp. 399-400 per Lord Denning M.R.; pp. 406-07 per Buckley L.J.).   Except for the duty to act fairly, Inspectors are not subject to any set rules or procedures and are free to act at their own discretion.   There is no right for a person who is at risk of being condemned by the Inspectors to cross-examine witnesses (ibid., p. 400B per Lord Denning M.R.).   It is not necessary for the Inspectors to put their tentative conclusions to the witnesses in order to give them a chance to refute them.   It is sufficient in law for the Inspectors to put to the witnesses what has been said against them by other persons or in documents to enable them to deal with those criticisms in the course of the investigation (Maxwell v. Department of Trade and Industry <1974> 1 Q.B. 523 (CA)).             Publication of the report of the investigation         The Secretary of State is empowered by section 437 (3) (c) to decide whether or not to print and publish the Inspectors' report. Although he has a very wide discretion in deciding whether or not to publish the whole report, he is precluded by section 437 (3) (c) from deciding to publish only parts or a synopsis of it.   Publication may, however, be deferred if there is a possibility that criminal proceedings may be taken, in order to avoid the possibility of prejudice to such proceedings.         Policy concerning the publication of Inspectors' reports       generally         The question of whether an Inspector's report should be published is considered in each case on its merits.   The DTI's general policy is to publish reports on public companies wherever possible, as being matters of public interest.   The fourth applicant, HOFH, is a public company.         Companies are in a privileged legal position resulting in particular from the limited liability which their members enjoy. Therefore, in circumstances where the Secretary of State has decided that the affairs of a large public company should be investigated under the provisions of section 432 of the 1985 Act because he is satisfied that the conditions of that section have been met and that the circumstances are of sufficient concern to warrant the substantial cost of an inspection, it is important that the Inspectors' report explaining the underlying facts and the conclusions that they draw from them should be made public unless there are overriding reasons to the contrary.         Privilege from defamation proceedings         In re Pergamon Press Ltd (<1971> Ch. 388 (CA)), at page 400G, Lord Denning M.R. stated that Inspectors         "should make their report with courage and frankness,       keeping nothing back.   The public interest demands it.       They need have no fear because their report, so far as       I can judge, is protected by an absolute privilege: see       Home v. Bentinck (1820) 2 Brod. & Bing. 130, 162, per       Lord Ellenborough, and Chatterton v. Secretary of State       for India in Council <1895> 2 Q.B. 189, 191, per Lord       Esher M.R."         Even if, contrary to Lord Denning's observation, the Inspectors' report is subject to a qualified rather than an absolute privilege, neither the Inspectors nor the Secretary of State could be successfully sued for defamation in publishing the report, except upon proof of express malice (i.e., the desire to injure as the dominant motive for the defamatory publication: see Horrocks v. Lowe <1975> A.C. 135 (HL), at page 149 per Lord Diplock).                         Judicial review         The grounds on which administrative action (such as the Secretary of State's decision to publish the report) is subject to judicial control are the three traditional grounds of judicial review described by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (<1985> AC 375 (HL)), at pages 410-11.   These are illegality, irrationality, and procedural impropriety.   "Illegality" means that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. "Irrationality" applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be arrived at could have arrived at it.   "Procedural impropriety" covers failure to act with procedural fairness towards the person who will be affected by the decision.         The Secretary of State had a duty to exercise his discretion whether to publish the Inspectors' report by reference to relevant and not irrelevant considerations, and in a manner which was not unreasonable in the sense of the Wednesbury principles (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223 (CA)).   "Irrationality" or "Wednesbury unreasonableness" is a narrowly restricted ground of judicial review of an administrative decision. "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of fac