Analysis: Publisher claims ODCE kept it out of the loop on data breach
When Paddy McKillen took on the State to prevent €2.1bn of loans being transferred to Nama, a consensus formed that the property investor didn't stand a chance. McKillen duly lost in the High Court, but he stunned many when his company Dellway won the Supreme Court appeal.
Mr McKillen delivered a knockout blow as the decision to transfer his loans was taken before Nama was formally established.
The Supreme Court also ruled that Mr McKillen (and other borrowers) had the right to fair procedures including the right to be heard in respect of Nama's exercise of its discretion to acquire bank assets.
Yesterday, the ghost of Dellway loomed large in courtroom six in the Four Courts as Independent News & Media (INM) sought to deliver its own knockout blow to a bid by the Director of Corporate Enforcement (ODCE) to have High Court inspectors appointed to investigate the affairs of the country's largest publisher.
INM, which employs 815 and publishes the Irish Independent, has - along with its share price - been reeling since last March when the publicly listed company notified the market of the ODCE's court action which has uncovered concerns about a range of issues including a suspected data breach and potential violations of "insider information" regulations.
Compared to the high drama last month when the ODCE sought to move its application before the president of the High Court, Mr Justice Peter Kelly, the opening of yesterday's judicial review action in front of Mr Justice Seamus Noonan, was more subdued.
However, the severity of what is potentially at stake for many parties (if the number of watching briefs is anything to go by) could not be understated.
At the heart of INM's efforts to have the ODCE's decision set aside is a Dellway-style complaint that it had a right to be heard or to make submissions to the ODCE before it went to court.
INM said the ODCE action came like "a bolt out of the blue," and was brought unfairly. In particular, it complained that the ODCE was in possession, from October 2017, of a spreadsheet containing the names of 19 people whose data may have been targeted in an alleged data breach at INM but it did not make INM aware of that "very critical" information until the application for inspectors was initiated.
The ODCE, led by director Ian Drennan, brought its application after a year-long investigation into INM. But senior counsel Paul Gallagher, for INM, said yesterday that the ODCE did not afford "even the most basic opportunity" to make representations before going to court. As with McKillen, INM faces an uphill battle to unseat the powers of a powerful State agency.
The ODCE is robustly contesting the action, which continues today.