Tuesday 14 August 2018

Parties to be granted access to documents in INM case

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

Shane Phelan

THE High Court has granted applications from several parties for access to affidavits and documents connected with the corporate watchdog's bid to have inspectors appointed to Independent News & Media (INM).

Access to the court papers was sought by journalist Sam Smyth, former INM Ireland chief executive Joe Webb, former INM company secretary Andrew Donagher, public relations firm Red Flag Consulting, its chief executive Karl Brophy, chairman Gavin O’Reilly and executive office manager Mandy Scott.

The names of Mr Smyth, Mr Webb, Mr Donagher, Mr Brophy and Ms Scott all appeared on a 19-person list of “persons of interest” uncovered by the Office of the Director of Corporate Enforcement (ODCE) during a year-long investigation into various corporate governance issues at the country’s largest media group.

It is feared the names on the list were searched for in data allegedly given to up to six companies external to INM in late 2014.

Also applying for access to court papers were former INM chief executive Robert Pitt, whose protected disclosure prompted the ODCE investigation, INM chief financial officer Ryan Preston, and Data Protection Commissioner Helen Dixon.

Ms Dixon’s office is to undertake an investigation into the major suspected data breach.

The court also heard that former INM chairman Leslie Buckley, on whose instruction, according to INM, data back-up tapes were given to a third party service provider, wanted access to the affidavits and court documents.

High Court President Mr Justice Peter Kelly today heard there was agreement between the ODCE and INM for documents to be released, subject to redactions of material the company argues is covered by legal professional privilege, and some other exclusions.

This is understood to relate to emails and documents outlining legal advice the company received on various matters.

Mr Justice Kelly said a “most unusual” feature of the case was the “extraordinary level of publicity” it had received.

This, he said, had led to various parties becoming concerned and wanting to be apprised of the material before the court.

He said counsel for INM had said at a previous hearing that legally privileged material was contained in an affidavit filed by ODCE director Ian Drennan and certain exhibits.

The purpose of the hearing today was to decide how the affidavit and materials may be given to the interested parties, in light of the concerns over privilege.

The judge said, however, that in the meantime, an agreement had been reached between the ODCE and INM over how the applications for access could be dealt with.

Mr Justice Kelly made directions for access in line with that agreement.

Under the agreement, certain portions of Mr Drennan’s affidavit and the replying ones on behalf of INM will not be disclosed to various parties.

All those parties will be able to apply to the court to reassess its decision if they believe they have not been given material they feel they should have received, the judge said.

After hearing from counsel for the ODCE, INM and Mr Pitt, Mr Justice Kelly ruled that he should be given access to an affidavit filed by Mr Drennan and all exhibits to it, apart from eight which are said to post date his departure from the company last October.

Mr Pitt will also be furnished with all 12 replying affidavits filed on behalf of INM.

The court heard that Mr Preston had received the Drennan affidavit from INM and intended to correspond with the company in relation to other documentation he is seeking.

Mr Smyth, Mr Donagher, Mr Webb, Red Flag, Mr Brophy, Mr O’Reilly and Ms Scott will be given access to portions of the Drennan affidavit and exhibits which relate solely to the data breach issue. The responding affidavits from INM will also be supplied, insofar as they deal with the alleged data breach.

Solicitor Simon McAleese, who is representing Mr Smyth, told the court he had learned from media reports he himself may feature in documents and also wanted access to them on his own behalf.

Mr Justice Kelly gave him access on the same terms.

The court heard the ODCE and INM had agreed that the Data Protection Commissioner should receive all material related to the alleged data breach.

Meanwhile, the court also ruled that Mr Buckley should be given access to court papers.

Mr Justice Kelly also gave Mr Buckley liberty to apply to be joined to the proceedings.

Mr Buckley’s counsel Sean Guerin SC said his clients was directly affected by the ODCE application and entitled to be served with all documents.

Mr Guerin was critical of the ODCE for not putting his client’s point of view across at a previous hearing.

However, Neil Steen SC, for the ODCE, said the only entity directly affected by the application for inspectors was INM.

He said the ODCE would object to the papers being served on Mr Buckley.

Mr Steen also said he had not previously understood that Mr Buckley was asserting an entitlement to documentation and rejected any criticism of the ODCE as “unfounded”.

He said Mr Buckley had Mr Drennan’s affidavit and will get most of the exhibits and replying affidavits.

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