Monday 22 October 2018

Judge finds INM chair has privilege over 10 documents sought by ODCE

Leslie Buckley had sought privilege over 11 documents
Leslie Buckley had sought privilege over 11 documents
Shane Phelan

Shane Phelan

Leslie Buckley, the outgoing chairman of Independent News & Media (INM), is entitled to claim privilege over 10 documents sought by the State's corporate enforcement watchdog, the High Court has ruled.

It means the documents, mostly emails exchanged by solicitor Kenan Furlong with Mr Buckley and IT expert Derek Mizak, cannot be examined by the Office of the Director of Corporate Enforcement (ODCE).

The material was among 275 documents handed over by Mr Buckley to the ODCE, which is investigating a protected disclosure made by former INM chief executive Robert Pitt.

Also reportedly under investigation is the handling of a "potential personal data breach" at the media company.

Mr Buckley claimed privilege applied to 11 documents, which were submitted to the ODCE in a sealed letter.

Following an application from the ODCE, Mr Justice Peter Kelly viewed the documents and decided 10 were privileged. The one remaining document, a letter from the ODCE to Mr Buckley, did not attract privilege, the judge found.

Last year the ODCE sought a range of documents from Mr Buckley as part of its investigation into a protected disclosure by Mr Pitt. The disclosure arose out of an aborted bid for Newstalk, owned by INM's largest shareholder Denis O'Brien.

Mr Buckley is a nominee of Mr O'Brien on the INM board. He is due to step down from the board at an extraordinary general meeting on March 1.

Mr Pitt and Mr Buckley were reportedly at odds over the valuation of Newstalk, with Mr Pitt said to have attached a lower value to the radio station than Mr Buckley. Mr Pitt departed the company last October.

Mr Justice Kelly said the ODCE had requested material from Mr Buckley on October 27 under section 780 of the Companies Act 2014, which gives it the power to require the production of documents from a company.

The judge said the ODCE had for months been involved in "a detailed engagement with INM". He said this gave rise to a lengthy exchange of correspondence, the detail of which had no relevance to matters arising for the determination in the ODCE's application.

In an affidavit, Mr Buckley said the documents at issue were emails to and from his solicitor relating to the preparation of his response to a statutory request from the ODCE.

He explained that Mr Mizak had provided expert technical advice and assistance in a "cost-reduction exercise". When explanations were sought by the ODCE in August 2017, certain technical questions arose which were outside his expertise and he felt Mr Mizak was best placed to answer them.

Mr Buckley explained he was initially put in contact with Mr Mizak by John Henry of Specialist Security Services, a firm specialising in corporate security and security services to protect against cyber attacks and other forms of data breaches.

After his ruling, Mr Justice Kelly said he would be making no order regarding costs.

Counsel for Mr Buckley, Brian Gageby BL, said: "Mr Buckley has been happy to assist the ODCE throughout this process and notes that the application made by the ODCE was mandatory. In the circumstances, Mr Buckley is making no application in respect of costs."

A spokesman for Mr Buckley said he welcomed the ruling but said that as there is an ongoing process, it would not be appropriate to comment further.

Irish Independent

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