Tuesday 25 June 2019

Judge to rule later over potential use of ODCE documents in lawsuits against INM

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

Shane Phelan

The President of the High Court will decide at a later date whether two former senior executives at Independent News & Media (INM) can use corporate watchdog documents in lawsuits they intend bringing against the company.

Mr Justice Peter Kelly said applications by former chief executive Gavin O’Reilly and former director of corporate affairs Karl Brophy raised “an important issue” which “could have repercussions” for other legal cases.

Both men intend to sue the media group and potentially other, as yet unidentified, individuals, over the alleged “interrogation” of data held by the company.

They claim their privacy and data protection rights were breached during alleged searches of INM data by external companies in 2014.

INM has said these searches were conducted at the behest of its former chairman Leslie Buckley, without the knowledge of other directors. INM has issued proceedings against Mr Buckley, who has pledged to robustly defend himself.

Last year, the High Court granted Mr O’Reilly and Mr Brophy access to papers filed in court by the Office of the Director of Corporate Enforcement (ODCE) as part of its successful application to have inspectors appointed to INM to investigate the alleged data interrogation and other issues of concern.

Mr Brophy, who now runs a public relations and consultancy firm called Red Flag, appeared on a list of 19 names discovered by the ODCE during its probe into matters at INM. It is feared the list was used to search INM data.

Mandy Scott, who was Mr O’Reilly’s personal assistant when he was INM chief executive, also featured on the list.  

When Mr O’Reilly and Mr Brophy were given access to the documents last year, the court ruled they would have to apply to the court if they wished to use the material for a purpose not connected to the ODCE’s investigation.

Today, they applied to be allowed use the documents as part of their intended lawsuit against INM.

Although the ODCE did not object to their application, it was opposed by INM.

Making the applications, Niamh Hyland SC, for Mr O’Reilly and Mr Brophy, told Mr Justice Kelly he had previously come to the conclusion there was evidence, including the alleged interrogation of data of journalists, executives and others, suggestive of INM’s affairs having been conducted for an unlawful purpose.

Ms Hyland a list of 19 names had been discovered and the ODCE’s investigation indicated that personal data was processed without the knowledge or consent of the individuals named.

She said there was prima facie evidence of wrongdoing and that the appointment of inspectors had been made.

The issue for her clients was the alleged breach of data protection and constitutional rights.

“They are litigating because their data was taken unlawfully and for a purpose that is still not clear,” she said.

In the case of Mr Brophy, she said he feared information about his pension entitlements and a medical examination may have been accessed.

Ms Hyland said a great deal of the material her clients seek to use had been opened in court and reported upon extensively in the media, including in INM publications.

She said it would be “wholly artificial” and lead to unneccessary costs if they had to start the process of seeking the documents again through discovery when they were already in their possession.

Ms Hyland said INM had consented to her clients receiving the documentation last year, but was now claiming her clients would have “a litigation advantage” if given approval to use the documents.

The barrister insisted there would be no undermining, injustice or prejudice towards INM if the applications were granted. 

She said the media group’s objections were designed to ensure not all relevant evidence was before the court, a position she said was not in the public interest.

However, Shane Murphy SC, for INM said the applications as originally made were different than what was now before the court.

The original applications envisaged the use of the documentation “without limitation”.

His said his client’s position was that the Oireachtas had put in place a framework under which documents gathered as part of an ODCE investigation can be used.

Mr Murphy said the relevant legislation did not deal with the use of such documentation in litigation by a private citizen.

Asked by Mr Justice Kelly why his clients had not objected to Mr O’Reilly and Mr Brophy receiving the documents in the first place, Mr Murphy said it was not envisaged at that point that they would be used for the purpose of litigation.

He said this original consent did not amount to a waiver. What was agreed to was a limited and restricted basis for the disclosure of the documents.

Mr Murphy said the proper administration of justice would not be served by granting the applications.

He said there was no suggestion the applicants could not proceed with a case without the information in the documents.

Mr Murphy also said it had been suggested that had the documents been sought under the discovery process, it would not be possible for some of the material to be accessed. This, he said, militated against the court granting the applications before it.

INM’s barrister went on to say the applications were premature. There was nothing to stop the applicants from returning to court at a later date with a defined request citing the specific documents they wished to use, he said.

Mr Murphy said there was a justifiable basis for the court to refuse the application until such time as the applicants had defined their case.

He argued the public interest was not served if the court was not being used at the correct time. He also said it was in the public interest to ensure the applications did not have an advantage in litigation.

Mr Murphy said the granting of the applications would set “a harmful precedent” as it would allow the applicants to short circuit normal processes.

Mr Justice Kelly said he would reserve judgment. He observed the applications gave rise to “an important issue” which could have repercussions for other matters.

Online Editors

Editor's Choice

Also in Irish News