McKillen fails in court appeal over Barclay brother documents

Property investor Paddy McKillen has failed in a High Court appeal over the release of documents which he claimed would show the Department of Finance engaged in "inappropriate" contacts with representatives of the billionaire Barclay brothers.

Mr Justice Seamus Noonan dismissed his appeal under the Freedom of Information Act against a November 2014 decision of the Information Commissioner related to the documents.

Mr McKillen had sought full access to 12 documents he believed would show the Department was lobbied by interests linked to Sir David Barclay and Sir Frederick Barclay concerning acquisition of Mr McKillen's "fully-performing" loans as part of a hostile takeover strategy concerning the London-based Maybourne hotel group.

Mr McKillen, as largest shareholder in Maybourne, vigorously opposed the takeover which led to litigation in England in 2012.

He claimed the Barclays sought, in 2011, to acquire his personal and corporate loans with Irish Bank Resolution Corporation (IBRC) and lobbied both the Minister for Finance and Nama in doing so.

He sought the release of documents relating to the Department contacts but the Information Commissioner refused access to 12 documents.

He appealed to the High Court where he argued the documents could disclose efforts by Barclay interests to influence key persons in the department.

The matter concerned Mr McKillen’s loans in IBRC and no public interest justified such contacts because IBRC and Nama are independent statutory interests, it was argued.

The court heard the department refused access to 11 of the documents because, due to their being already subject of a High Court discovery order, that would amount to contempt of court.

Disclosure of a 12th document, containing three emails to a department official, was refused on grounds it contained commercially sensitive information which the department said was not in the public interest to disclose.

The identity of the sender of the emails was initially blacked out but was later disclosed as Richard Faber, a director of a company linked to the Barclay brothers and son in law of Sir Frederick Barclay, the court also heard.

On Tuesday, Mr Justice Noonan said no error of law had been demonstrated in the Commissioner’s decision in relation to the record consisting of three emails to a department official from a prospective loan buyer whose identity was redacted.

The judge said Mr McKillen’s made the case there was a public interest in exposing the fact that the Minister for Finance appeared to favour the Barclays over him and this would give rise to a potential loss to the exchequer whereas Mr MckiIlen was a “significant contributor to the Irish economy”.

Any improper contact, if there was such, was disclosed by the release of the redacted record. The blacked out information added nothing to the alleged impropriety at issue, he said.

“It is difficult to understand therefore the basis on which the appellant (McKillen) alleges there is a public interest in this redacted information, as distinct from his own private interest in accessing it”, he said.

The judge also said if there was a public interest – and it remained to be seen whether that had been established in this instance – the Information Commissioner was obliged to balance that interest against the potential harm that might result from disclosure.

He believed the Commissioner correctly carried out a balancing exercise and it was not the court’s function to reassess that balance unless it was manifestly arrived at in error. No such error had been demonstrated here, he said.

In relation to the other 11 records, the judge said the commissioner was bound to apply a previous court decision relating to disclosure of documents which were alredy the subject of court-ordered discovery.

Disclosure of documents in those circumstances, whenever made, is a contempt of court and must be refused, he said.