Tuesday 14 August 2018

Judge sets hearing date for move to appoint inspectors to INM

Independent House, Talbot Street, Dublin
Independent House, Talbot Street, Dublin
Shane Phelan

Shane Phelan

THE High Court will hear the corporate watchdog's application for the appointment of inspectors to Independent News & Media (INM) next month.

The Office of the Director of Corporate Enforcement (INM) wants inspectors with wide-ranging powers to examine a number of corporate governance issues at the country’s largest media group.

These include a major suspected data breach at the company in 2014, where it is feared the emails of several people, including high-profile journalists Brendan O’Connor and Sam Smyth, may have been accessed.

High Court President Mr Justice Peter Kelly today set hearing dates of July 10 and 11 for the application by the watchdog.

The court heard the case may run to a third day.

Mr Justice Kelly also made an order granting the Central Bank access to relevant documentation filed in the case by both the ODCE and INM.

The court heard the bank wanted access to documentation relating to allegations of potential market abuse.

Mr Justice Kelly said it would be free to use this documentation for the purpose of carrying out its statutory functions in relation to the policing of EU market abuse regulations.

Margaret Gray BL, for the Central Bank, said her client had been informed by INM that it would receive relevant documents within 48 hours.

Neil Steen SC, for the ODCE, said he had no objection to this.

Mr Justice Kelly said that in the event of any difficulty arising, the bank could come back to the court.

The judge also set out a timetable for the exchange of affidavits and for submissions to filed to the court in advance of the inspectors application hearing.

Today’s hearing came just days after INM issued proceedings against its former chairman Leslie Buckley.

It is understood the company is claiming to have suffered damage as a result of the alleged actions of Mr Buckley, who left INM in March.

Mr Buckley has pledged to defend himself against each and every allegation.

He has been a central figure in matters investigated by the ODCE in the run up to its decision to seek the appointment of inspectors.

The issues Mr Buckley is caught up in include the removal of IT back-up tapes from the company’s premises to a site abroad.

INM has confirmed the tapes were given to a third party service provider on the instructions of Mr Buckley.

He has claimed he was looking for information about a contract he hoped to renegotiate, but INM says ODCE correspondence suggests the data may have been “searched more extensively and for a different purpose”.

The ODCE has also alleged Mr Buckley shared information with INM’s largest shareholder, businessman Denis O’Brien “that may well fall within the definition of inside information” under EU market abuse rules.

Today, Mr Steen said the ODCE had seen media reports that INM was suing Mr Buckley. He said the ODCE would like to see copies of those proceedings.

Shane Murphy SC, for INM, said this would be addressed in affidavits INM plans to file.

The ODCE’s investigation was prompted by protected disclosures made by former INM chief executive Robert Pitt in 2016 and 2017.

It has alleged the range of “potentially unlawful conduct” that may have taken place within the company is “extensive”.

As well as the data breach and market abuse issues, the ODCE has also been examining the proposed purchase by INM of Newstalk, a radio station owned by Mr O’Brien.

Also under scrutiny is a proposed success fee for Island Capital, a company owned by Mr O’Brien, in connection with the sale of INM’s shares in Australian media group APN in 2015.

The Newstalk deal did not go ahead and no success fee was paid in connection with the APN share sale, but concerned were raised by Mr Pitt in relation to both matters.

Last week, another High Court judge dismissed judicial review proceedings taken by INM seeking to quash the ODCE’s decision to seek the appointment of  inspectors.

The company had argued it had a right to be consulted before the decision was made.

The decision by Mr Justice Seamus Noonan paved the way for the application hearing to proceed before Mr Justice Kelly.

INM is opposing the appointment of inspectors, given the impact it would have on the company.

It has also argued that the ODCE can investigate the matters it is concerned about without recourse to inspectors and that the data breach issue is being investigated by the Data Protection Commissioner.

However, the ODCE contends there is a "compelling public interest" for inspectors to be appointed.

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